orni« 


r 


!  D  n  A  n\/ 


■J 


CASES  AND  OPINIONS 


ON 


INTERNATIONAL    LAW 


WITH 


NOTES  AND  A  SYLLABUS. 


BY 


FEEEMAN   SNOW,  Pn.D.,  LL.B. 

INSTRUCTOR    IN    INTERNATIONAL    LAW    IN    HARVARD    UNIVERSITY, 


BOSTON: 
THE   BOSTON  BOOK   COMPANY. 

1893. 


na.  NfTiaMnMiL 


Copyright,   1893, 
By  Freeman  Sno\«. 


PRF.S8WORK    BT 
THE   t'SIVEKSlTY    IMIESS,    CAMDKIDG& 


PREFACE, 


The  design  of  this  work  was  formed  some  years  since, 
while  teaching  the  subject  of  International  Law  in  the  United 
States  Naval  Academy,  and  the  greater  part  of  the  compila- 
tion was  made  during  a  subsequent  residence  of  three  years 
in  France,  Germany,  and  England  ;  but  other  duties  have, 
till  the  present  time,  prevented  its  completion. 

The  object  has  been  primarily  to  provide  a  convenient  col- 
lection of  materials  relating  to  International  Law,  for  the  use 
of  students.  To  avoid  the  method  of  instruction  by  lectures 
alone,  and  the  even  less  satisfactory  method  of  recitation 
from  text-books,  it  is  believed,  that  the  "case  system," 
introduced  into  the  Harvard  Law  School  a  score  of  years 
ago,  by  Professor  Langdell,  offers  a  happy  substitute.  In- 
deed, having  employed  that  system  for  the  last  half  dozen 
years,  in  classes  in  International  Law,  in  Harvard  University, 
I  am  thoroughly  convinced  that  it  is  well  adapted  to  that 
subject ;  the  only  drawback  has  been  the  difficulty  of  finding 
the  necessary  materials  in  a  convenient  form. 

By  this  method,  the  student  is  called  upon  to  take  an  active 
part  in  the  exercises  of  the  lecture  room  ;  he  is  to  report  briefly 
the  facts  and  judgment  in  a  given  case,  and  then  is  to  ex- 
plain the  principles  and  their  application,  and  must  maintain 
his  position  against  the  criticisms  of  the  instructor,  and 
the  other  members  of  the  class.  The  student  should  thus 
acquire  a  firmer  grasp  of  the  subject  than  he  can  get  from 
the  study  of  text-books  alone  ;  he  is,  moreover,  more  inter- 


iv  PREFACE. 

ested  in  his  work.  as.  I  believe,  experience  has  shown 
wherever  the  system  has  been  introduced.  These  cases 
are,  to  a  large  degree,  the  original  sources  of  the  rules  of 
International  Law ;  and  they  furnish  the  opportunity  of 
becoming  familiar  with  the  ideas  of  the  eminent  men — 
judges  and  statesmen — who  have  controlled  the  develojDment 
of  this  law.  Many  of  the  cases,  in  addition  to  deciding  the 
single  point  at  issue,  are  admirable  expositions  of  general 
principles,  and  give,  besides,  a  concise  histor}^  of  the  subject. 

It  is  not  proposed,  however,  to  discard  text-books.  It  is 
indeed  the  justly  celebrated  authors  of  treatises  on  Interna- 
tional Law  who  have  analyzed  and  systematized  the  subject, 
and  who  have  reduced  it  to  a  science.  A  collection  of  cases 
and  opinions,  moreover,  must  necessarily  leave  many  gaps, 
to  be  filled  by  means  of  text-books  or  lectures.  And  it  is  the 
purpose  of  the  syllabus — a  leading  feature  of  this  book — to 
make  available  the  opinions  of  a  number  of  the  most  eminent 
writers,  of  different  countries,  by  grouping  references  to  their 
works  under  specific  heads.  It  will  thus  be  made  possible  to 
compare  their  opinions,  in  many  cases,  with  the  sources  upon 
which  they  all  rely. 

It  is  thought,  further,  that  a  collection  of  leading  cases  and 
opinions  may  prove  to  be  a  convenience  for  those  who  are 
called  upon  to  deal  with  the  practical  questions  of  Interna- 
tional Law,  viz..  Lawyers,  Legislators,  and  Diplomatists. 
With  this  end  in  view,  it  has  been  the  almost  invariable 
rule  to  give  the  decisions  of  courts  in  the  exact  language  of 
the  judges,  though  necessarily  leaving  out,  in  some  cases,  the 
less  pei-tinent  parts.  In  this  respect  this  volume  differs  radi- 
cally from  Mr.  Pitt  Cobbett's  excellent  work  upon  the  same 
subject. 

FKEEMAN  SXOW. 

Cambridge,  ^Ia-ss., 

Sept.  1st,  1893. 


TABLE  OF  CONTENTS. 


PAGE. 

Syxlabl'S xiii 

INTRODUCTION. 

§  1.  International  Law  is  a  Part  of  the  Municipal  Law  of  States 1 

PART  I. 

International  Relations  in  Time  op  Peace. 

CHAPTEK  L 

STATES — TERRITORIAL  RIGHTS. 

§  2.  Definition  and  Character  of  Sovereign  States 5 

§  3.  Acquisition  of  Territory , 0 

§  4.  Recognition  of  Independence 13 

§  5.  Boundaries 14 

§  6.  The  Effect  of  a  Change  of  Sovereignty 18 

(a)  Upon  Public  Riglits  and  Obligations 18 

(h)  Upon  Private  rights 21 

§  7.  De  Facto  Governments 24 

(a)  Recognition  of  Belligerency 24 

(h)  Succession  to  the  Rights  of  Belligerent  Communities 28 

§  8.  Territorial  Waters  of  a  State 32 

(o)  Rivers 32 

(b)  Straits 41 

(c)  Bays 44 

{d)  Marginal  Seas 55 

CHAPTEK  11. 

TERRITORIAL  JURISDICTION. 

§    9.  Immunities  of  Foreign  Sovereigns 72 

§  10.  Immunities  of  Diplomatic  Agents 83 

(a)  Criminal  Jurisdiction 83 

(b)  Civil  Jurisdiction 89 


Vi  TABLE    OF    CONTENTS. 

PAGE. 

§  11.  Iiumunitios  of  Public  Ships 103 

(a)  Ships  of  War 103 

(/<)  Other  Public  Ships 116 

§  12.  Merchant  Vessels 121 

§  l.J.  Right  of  Asylum 139 

(a)  In  Lejiations 139 

(//)  On  board  Ships  of  War 144 

(r)  On  board  Merchant  Ships 147 

§  14.  Extradition 151 

§  1.").  Jurisdiction  of  Offenses  Committed  Abroad 172 

§  1().  Extraterritorial  Acts  by  Order  of  the  State 175 

§  17.  Extraterritorial  Acts  by  a  State  in  Self-defense 177 

§  18.  Injuries  to  Foreigners  by  Mob  Violence 181 

CHAPTER  III. 

JURISDICTION'  OX  THE  IIIOH  SEAS. 

§  10.  Merchant  Vessels 184 

§  20.  Municipal  Seizures  beyond  the  Three-mile  Limit 193 

§  21.  Piracy 195 


CHAPTER  IV. 

KATIOXALITY. 

§  22.  Indelible  Allegiance — Expatriation 213 

§  23.  Citizenship — ^Naturalization 219 

§  2\.  Protection  to  Citizens  Abroad 225 

§  25.  Status  of  American  ludiaus 230 

PAIiT  II. 

IXTEUXATIOXAL  IvELATIOXS  AS   MODIFIED  HY  WaR. 
CHAPTER  I. 

MEASURES    SHORT    OF    AVAR. 

§  20.  Reprisals 243 

§  27.  Hostile  Embargo 249 

§  28.  Declaration  of  War 250 

CHAPTER  IL 

EFFECTS  OF  WAR  AS  RETWEEX  EXEMIKS. 

§  29.  Enemy's  Property  within  the  Territory  and  Debts  Due  to  the  Enemy. ...  260 

5  30.  Private  Contracts 270 

§  31.  Trade  with  the  Enemv 283 


TABLE   OF   CONTENTS.  vii 

PAGE. 

§  32.  Ransom  Bills 310 

§  83.  Cominorciul  Doinicil 315 

§  34.  Ownership  of  Goods  in  Transit 339 

§  35.  Transfer  in  transltn 359 

§  36.  Freight Sm 

§  37.  Recapture — Rescue 35s 

§  38.  Hostile  Occupation — Conquest 3(34 

§  39.  Termination  of  War 385 

CHAPTER  HI. 

RELATIONS  BETWEEN  BELLIGERENTS  AND  NEUTRALS. 

§  40.  Belligerent  Capture  in  Neutral  Waters 393 

§  41.  Equipment  of  Vessels  of  War  in  Neutral  Territory 402 

§  42.  Aid  to  Insurgents 435 

(m)  Loans  of  Money 438 

(b)  Ships,  Munitions,  and  other  Supplies 443 

§  43.  Sale  of  Munitions  of  War  by  a  Neutral  State 459 

§  44.  Contraband  of  War 402 

§  45.  Dispatches  and  Persons  as  Contraband 477 

§  46.  Blockade 49O 

§  47.  Rule  of  the  War  of  1756 502 

§  48.  Continuous  Voyages 505 

§  49.  Visit  and  Search 515 

§  50.  Prize  Courts 518 

APPENDIX. 

A.  The  Behring  Sea  Arbitration .522 

B.  The  Declaration  of  Paris 529 

C.  The  Declaration  of  St.  Petersburg 530 

D.  The  Geneva  Convention 531 

E.  Instructions  for  United  States  Armies 532 

F.  Code  of  the  Institute  for  Wars  on  Land 5,55 

G.  Instructions  for  the  French  Navy 565 


TABLE  OF  CASES. 


PAGE. 

Aberdeen,  Op.  of 148 

Adams,  J.  Q.  to  Monroe 13 

Aertsen  v.  Ship  Aurora 1.32 

Alabama,  The 425 

Alibert's  Case 218 

Ambassador  of  Peter  the  Great ....     89 

Amistad  de  Rues,  La 40G 

Am.  Ins.  Co.  v.  Canter 372 

Anderson,  J.,  Case  of 185 

Anemone  1' 124 

Ann  Green,  The .354 

Anna  Catharina,  The 34(3 

Anna,  The 393 

Anne,  The 400 

Antonia  Johanna,  The 330 

Antoine  v.  Morshead .308 

Atalanta,  The  (1808) 477 

Atalanta,  The  (1856) 184 

Attorney-Gen.  v.  Weeden 2G1 

Baron  de  Wrech's  Case 97 

Barrundia's  Case 150 

Bayard,  Op.  of 22 

Boedus  Lust,  The 249 

Behring  Sea  Arbitration .521 

Belgenland,  The 189 

Bentzen  v.  Boyle 330 

Betsy,  The 492 

Bosphorus  and  Dardanelles,  The ...  43 

Boussmaker,  Ex  parte 267 

Briggs  V.  Light-Boats 120 

>Brown  V.  The  United  States 263 

Brown,  J.,  Case  of 144 

Carlotta,  The 360 

Carolini,  The 177 

Cassius,  The 405 

Castioni,  In  re 163 

Cazo's  Case 161 


PAGE. 

Cellamare's  Case 88 

Charles  I.,  Proclamation  of 462 

Charming  Nancy,  Tlie 312 

Chavasse,  Ex  parte 476 

Chin  King,  Ex  parte 219 

Church  i\  Hubbart 193 

Cockburn,  Op.  of 213 

Commercen,  The  470 

Constitution,  The 114 

Cornu  V.  Blackburn 310 

Creole,  The 136 

Cross  V.  Harrison 371 

Gushing,  Att.-Gen.  Op.  of 16 

Cutting's  Case 172 

Dana,  Op.  of 24 

De  Haber  v.  Queen  of  Portugal 76 

De  Wiitz  v.  Hendricks 438 

Declaration  of  Paris,  The 529 

Declaration  of  St.  Petersburg,  The.  5.30 

Delagoa  Bay 11 

Dillon's  Case 99 

Direct  U.  S.  Cable  Co.  v.  Anglo- Am. 

Tel.  Co 45 

Don  Pacifico,  Case  of 246 

Dubois'  Case  98 

Elector  of  Hesse  Cassel 381' 

Elk  y.  Wilkins 2.30 

Ellis  V.  Mitchell 133 

Emanuel,  The 504 

Emden's  Case 223 

Emily  St.  Pierre,  The 301 

Exchange  v.  M'Faddon 103 

Fish,  Op.  of 142 

Fleming  r.  Page 365 

Florida,  The 428 

Foreign  Enlistment  Act,  British. . .  403 


X 


TABLE   OF   CASES. 


PAGE. 

Fortima,  The  (1802) o5T 

Fortuna,  The  (1803) KJS 

Foster  v.  Xeilson 14 

Frienilschaft,  The S-M 

Furtado  r.  IJodgers 303 

General  Armstrong,  The 396 

Geneva  Award 431 

Geneva  Convention 531 

Georgia,  The 429 

Gomez'  Case 145) 

Grant,  President,  Message  of 210 

Grapeshot,  The 374 

Greytown,  Bombardment  of 248 

Griswold  V.  Waddington 274 

Guerin'  s  Case 375 

Guiteau  Trial,  The 103 

Gyllenborg's  Case 87 

Halleck,  Opinion  of 5 

Hanger  v.  Abbott 270 

Harcourt  r.  Gaillard 15 

Hardy  Le  v.  La  Yoltigeante 337 

Harmony,  The 326 

Hausding's  Case 222 

Helen,  The 41)7 

Hoop,  The 283 

Huascar,  The 208 

Immanuel,  The 502 

Indian  Chief,  The 315 

Instructions  for  the  French  Xavy.. 
Instructions  for  U.  S.  Army 532 

Jan  Frederick,  The 352 

Jecker  r.  Montgomery 373 

Jenkins,  Sir  L.,  Op.  of 105 

Johnson  r.  Mackintosh 0 

Joseph,  The  Brig 292 

Kent,  Op.  of 21 

KennetL  r.  Chambers 441 

Kershaw  c.  Kelsey 295 

King  of  Spain  v.  Ilullett 82 

Koszta's  Case 226 

Leslie,  Bishop  of  Boss 83 

Lilla,  The 27 

Lindo  r.  Rodney 250 

Louis,  Le 209 


PAGE. 

McLeod's  Case 175 

Madison,  Tlie 482 

Magdalina  Steam  Xavigaiion  Co.  c. 

Martin 102 

Magellan  Pirates,  The 205 

Manchester  v.  Massachusetts 47 

Maria,  The 515 

Mendoza's  Case 85 

Mentor,  The 385 

Meteor,  Tlie 418 

Mississippi,  Navigation  of  the 33 

Mohr  &  Haas  i\  Hatzfeld 377 

Montezuma,  The 206 

Xaney,  The 494 

Xashville,  The 431 

Xeptunus,  The 490 

Xereyda,  The 407 

X'^eutralitet,  The 474 

Xeutrality  Act,  U.  S 402 

New  Orleans  Mob,  1891 183 

X'ew  Orleans  Riot,  1851 181 

Xewton,  The,  and  The  Sally 121 

Xitchencoff's  Case 103 

X'ymph,  The 386 

X.  T.  Life  Ins.  Co.  r.  Stathem. . . .  278 

Occupation  of  Naples 384 

Ocean,  The 495 

Oregon  Territory,  The 9 

Orozembo,  The 483 


Packet  de  Bilboa,  The 339 

Parlement  Beige,  The 116 

Patrixent,  The 313 

Perle,  The 398 

Peterhoff,  The 465 

Philips  r.  Hatch 392 

Potts  r.  Bell 287 

Prins  Frederik,  The 115 

Prioleau  r.  U.  S.  &  Andrew  John- 
son   77 

Prize  Cases,  The  (1) 254 

Prize  Cases,  The  (2) 334 

Prize  Courts 518 

Prize  Courts  on  board  ships 519 

Protector,  The 391 

Prussian  Subject,  Case  of 224 


Macdonald's  Case 214    Queen  v.  Keyn 55 


TABLE   OF   CASES. 


XI 


PAOE. 

Rapid,  The 4S() 

Regina  v.  Cunningliam 44 

Regina  v.  Leslie 187 

Reliance,  The 129 

Respublica  v.  De  Longchainps 104 

Ricord  tj.  Bcttenhani,  312 

Ripperda,  Duke  of 13!) 

Rivers,  European,  Navigation  of . ..     40 

Rose  V.  Hiniely 19."> 

Rothschild  v.  Queen  of  Portugal ...     82 

Sa's  Case 86 

Sale  of  Arms  to  France 459 

Sally,  The 344 

Salvador,  The 455 

San  Jose  Indiano,  The 342 

Santa  Cruz,  The 358 

Santa  Lucia 12 

Santissima  Trinidail,  The 408 

Scotia,  The 1 

Sea  Lion,  The 300 

Seton  V.  Low 475 

Shenandoah,  The 429 

Silesian  Loan,  The 243 

Sotello's  Case 147 

Sound  Dues,  The 41 

Stephen  Hart,  The 509 

St.  Albans  Raid,  The 162 

St.  Lawrence,  Navigation  of  the. ..     35 

St.  Lawrence,  The 290 

St.  Marks,  Seizure  of 178 

Sumpter,  The 430 

Swineherd,  The 388 

Tacony,  The 431 

Tallahassee,  The 431 

Taylor  v.  Best 90 

Tempest,  The 122 

Terceira  Affair,  The 421 

Teutonia,  The 250 

Texan  Bonds 18 

Thetis,  The 389 


PAGE, 

Thompson  v.  Powles 440 

Towsig's  Case 228 

Trent,  The 486 

Trimble's  Case 158 

Trois  Freres,  Lcs 248 

United    States    v.    The    Ambrose 

Light 200 

United  States  v.  Baker 204 

United  States  v.  Dickelman 138 

United  States  v.  Grossmayer 298 

United  States  v.  Jetf ers 140 

United  States  v.  Liddle 104 

United  States  v.  Moreno 375 

United  States  v.  Ortega 104 

United  States  v.  Percheman 21 

United  States  v.  Prioleau 28 

United  States  v.  Quincy 412 

United  States  v.  Raascher 151 

United  States  v.  Rice 364 

United  States  v.  Smith 196 

United  States  v.  Trumbull 443 

United  States  v.  Wagner 79 

Yavasseur  v.  Krupp 72 

Venus,  The 319 

Villasseque's  Case .380 

Virginius,  The 179 

Volant,  U 472 

Vrow  Henriea,  The 3-56 

Vrow  Margaretha,  The 350 

Wagner's  Case 225 

Ware  v.  Hylton 260 

Wheaton's  Case 94 

Wheaton,  Op.  of 32 

Wildenhus'  Case 126 

Willendson  v.  The  Forsoket 132 

William,  The 505 

William  Bagalay,  The 293 

Williams,  I.,  Case  of 215 

Wolff  V.  Oxholm 268 


SYLLABUS. 


\_Expla7iation  of  References. — The  references  in  this  Syllabus  to 
the  standard  modern  authors,  are  to  the  following  editions  of  their 
works : — 

Bluntschh,  2d  French  Ed.,  translated  by  M.  C.  Lardy  (1874); 
Calvo,  5th  Ed.  (1888) ;  Creasey,  "  First  Platform  of  International 
Law,"  (1876) ;  Hall,  3d  Ed.  (1890) ;  Halleck,  Ed.  by  Sir  S.  Baker 
(1878) ;  Helfter,  4th  French  Ed.  by  F.  H.  Geffcken,  translated  by  .J. 
Bergson  (1883) ;  Phillimore,  3d  Ed.  (1879-  ) ;  AYalker,  T.  A.  "The 
Science  of  International  Law"  (1893);  Wheaton,  Ed.  by  Lawrence 
(1863),  and  by  Dana  (1866),  referred  to  by  title  Wheaton  (L)  and 
(D) ;  Woolsey,  Ed.  by  T.  S.  Woolsey  (1890);  Wharton's  "Digest  of 
International  Law  "  will  be  referred  to  as  "  Wharton's  Digest." 

This  collection  of  Cases  and  Opinions  will  be  cited  as  Cases  and 
Op.] 

INTRODUCTION. 

1.  Definitions  of  International   Law,  or  the  Law  of  Nations.    (Hal- 

leck, I.,  41  ;  Wheaton  (L),  26,  (D),  23  ;  Hall,  1  ;  Woolsey, 
2  ;  Creasey,  1 ;  Calvo,  I.,  139.) 

2.  Origin  of  the  terms  "  Law  of  Nations,"  and  "  International  Law." 

Compare  with  the  terms  "  J'M.s-  G-entium,^''  "Jus  JSfaturale,^^ 
"  Droit  des  gens, "  "  Droit  international,"  '' Volkerrecht." 
(Wheaton  (L),  14-21  and  notes,  (D),  4^Q,  16-21  and  note  7  ; 
Woolsey,  10  ;  Creasey,  17-21.) 

3.  Is  International  Law  a  branch  of  true  Law?    Objections  by  Aus- 

tin and  his  followers  to  the  term  "law"  as  used  in  "interna- 
tional law,"  on  the  ground  that  there  is  no  superior  power  to 
enforce  it :  it  has  no  "  sanction."  In  accordance  with  this  view 
see,  (Austin's  Jurisprudence,  abridged  Ed. ,  pp.  .5-18,  hw- 
63,  Y4,  85  ;  Stephen's  History  of  the  Criminal  Law.  II., 
Z'ietseq.;    Holland's     "Jurisprudence,"  96-97,  291-293.) 

xiii 


xiv  SYLLABUS. 

Opposed  to  this  view  (Sir  Henry  Maine  :  "  International 
Law,"  Sf>-53  ;  T.  J.  Lawrence  :  "  Essays  on  International 
Law"',  1  ;  Hall,  1^17  ;  Bluntschli,  2-10  ;  Woolsey,  26-20  ; 
Walker,  1-40,  45-56  ;  Creasey,  To-76.) 

4.  The  Sources   and   Nature  of  International  Law.     (Wheaton, 

chapter  I.  ;  Halleck,  I.,  chapter  II.  ;  Hall,  1-14  ;  Blunt- 
schli, 1-19  ;  Sir  H.  Maine,  1-25  ;  Calvo,  I.,  139-167  ;  Phil- 
limore,  I.,  chapter  III.) 

5.  Historical  sketch    of  International  Law.     (Halleck,    chapter 

I.,  Walker,  57-112;  Calvo,  I..  1-137.  For  extended 
works,  see  Ward's  Law  of  Nations  ;  Wheaton's  History 
of  the  Law  of  Nations  ;  Laurent  :  L'Histoire  de  THuma- 
nit^,  etc.) 

6.  International  Law  is  a  part  of  the  law  of  States.     (Cases  and 

Op.,  1-4;  Woolsey,  §29.) 

7.  The  leading  writers  on  International  Law.     (Calvo,  I.,  27-32, 

45^6,  51-55,  61-63,  70-73,  101-120  ;  Halleck,  I.,  chapter  I.) 

■'^.   Private  International  Law,  or  the  Conflict  of  Laws.  (Hall,    54  ; 
Woolsey,  ^§73-74;  Calvo,  I.,  120-125.) 


PART  I. 

INTERNATIONAL  LAW  IN  TIME  OF  PEACE. 

I.  SuvEREiGN  States — De  facto  States. 

(a)  Sovereign  States. 

9.  Sovereign  States  are  the  Subjects  or  Persons  of  International 
Law.  (Hall.  Is-IK;  Bluntschli,  xVrts.  17-27;  Phinimore, 
I.,  79  ;  Heffter,  43;  Wheat.  (D),  §  16.) 

1".  Deflnition  and  Nature  of  Sovereign  States.  (Wheaton  (L), 
31-33,  5S  (D),  29-31  ;  Hall,  18-21,  24,  25  ;  Bluntschli, 
Arts,  ls-21,  64;  Woolsey,  34-36;  Halleck,  I.,  58-59; 
Phillimore,  I.,  si-85 ;  Creasey,  6,  93;  Calvo,  I.,  168- 
170;  Heffter,  45.) 


SYLLABUS.  XV 

1 1 .  Distinction  between  Internal  Sovereignty  and  External  Sov- 
ereignty of  States.  (Whojiton  (D),  31  (L),  35  ;  Bluntschli, 
Art.  04;  Holland:  Jurisprudence,  40,  276,  29,5.) 

12.  Internal  changes  in  a  State  do  not  affect  Its  standing  in 
International  Law.  (Hall,  22,  23  ;  Wheaton  (L),  30,  (D), 
33-34  ;  Bluntschli,  Arts.  39-40;  Creasey,  99-109  ;  Woolsey, 
38,  39  ;  Phillimore,  I.,  202-212.) 

13.  The  fundamental  Rights  and  Duties  of  States.  (Hall,  45-47  ; 
Halleck,  I.,  SO-82  ;  Wheaton  (L),  115,  (D),  89,  90.) 

14.  Classification  of  States:  "Centralized  States,"  "Personal 
Union,"  "  Real  Union,"  (Bunderstaat),  "  Confederate  Union," 
(Staatenbund),  Protected  State,  Neutralized  State.  (Hall,  25- 
31  ;  Bluntschli,  Arts.  70-76  ;  Wheaton  (D),  40-41,  73, 
78,  82,  and  note  32  (L),  7^1-76  ;  Halleck,  I.,  62-66  ;  Phil- 
limore, I.,  94-101  ;  Calvo,  I.,  173-179  ;  Creasey,  135-142.) 

15.  The  Equality  of  States.  (Wheaton  (L),  58,  (D),  52  ;  Hal- 
leck, I.,  99-123;  Heffter,  65-70;  Woolsey,  §  54;  Blunt- 
schli, Art.  81  ;  T.  J.  Lawrence,  Essays,  No.  5.) 

16.  Date  of  the  commencement  of  States.  (Hall,  87-90 ; 
Wheaton  (L),  46-47  ;  (D),  41  ;  Bluntschli,  Art.  29  ; 
Halleck,  I.,  74  and  note  1.) 

17.  Effects  of  the  recognition  of  a  new  State  by  the  parent  State, 
and  by  third  States.  (Hall,  88-93  ;  Bluntschli,  Art.  30  ; 
Wheaton  (D),  32  ;  Halleck,  I.,  72  and  note  1.) 

18.  "When  is  the  recognition  by  third  States  of  a  new  State  claiming 
independence,  proper  ?  (Cases  and  Op.,  13;  Hall,  90-93; 
Bluntschli,  Arts.  31-35;  Halleck,  I.,  72-74;  Wheaton 
(L),  46-47  ;  (D),  41-46  and  note  16  ;  Creasey,  677-681  ; 
Phillimore,  II.) 

19.  Methods  of  Recognition— The  Congo   State.    (Hall,    88,    note 

193,  §  26.*) 

20.  The  effect  of  a  change  of  Sovereignty  upon  public  rights  and 
obligations.  (Case  of  the  Texan  Bonds,  Cases  and  Op., 
18,  and  20,  n.;  Opinion  of  Kent,  lb.,  21;    Hall,  102-103; 


Xvi  SYLLABUS. 

TVheaton  (D),  42-49  ;  (L),  48-53 ;  Creasey,  144-140  :  Phil- 
limore,  I.,  211 ;  Woolsey,  §  38.) 

21.  Effect  of  change  of  Sovereignty  upon  private  rights.     (Case  of 

U.  S.  V.  Percliemau,  Cases  aud  Op..  21 ;  Opinion  of 
Bayard,  Ih.,  22.) 

ib)  De  Facto  States. 

22.  What  are  de  facto  States,  or  Belligerent  Communities  ?    *,Hall, 

31-33  ;  HaUeck,  I.,  08.) 

23.  Recognition  of  Belligerency.  (Opinion  of  Dana,  Cases  and 
Op.,  24  ;  The  Lilla,  lb.,  27  :  and  see  Wheaton  (L),  40 
note,  (D),  note  15  ;  Hall,  35-37  ;  Wharton's  Digest,  I., 
§09;  Woolsey,  §  41.) 

24.  Have  Belligerent  Communities  any  legal  right  to  recognition 
by  Sovereign  States  ?  (Hall,  33-35  ;  Bkmtschli,  Art. 
512,  n.) 

25.  Forms  of  recognition.     (Hall,  37-39;  Wheaton  (D),  37,  n.) 

20.  Recognition  of  the  Confederate  States,  1861.  (Hall,  39^2  ; 
AVoolsey,  §  180  ;  Bkmtschli,  in  R.  D.  J..  II.,  402  ; 
Wheaton  (D),  37,  note.) 

27.  Succession  to  the  rights  of  Belligerent  Communities.  (U.  S. 
V.  Prioleau,  Cases  and  Op..  2^  ;  U.  8.  v.  McKae,  lb., 
32,  n.) 

28.  When  a  Belligerent  Community  becomes  independent,  what 

are  its  relations  to  the  contract  rights  and  duties  of  the 
parent  State,  as  to  (1)  Treaty  obligations,  (2)  Property,  (3) 
Debts.    (Hall,  91-102  ;  Bluntschli.  Arts.,  47,  48.) 

29.  Right  of  the  United  States  to  the  British  American  Fisheries. 

(Hall,  97-99  ;  Wharton's  Digest,  HI.,  §  302.) 

II.  The  Territorl\l  Property  of  a  State. 
(a).    Extent  and  Nature  of  Territorial  Property. 

30.  In  what  does  the  territorial  property  of  a  State  consist  ? 
(Hall,  104,  ,^  .30  ;  Wheaton  (D),  iKJ'l.) 


SYLLABUS.  Xvii 

31.  What  is  the    nature    of  the    proprietary  title  of  a    State  in 

(1)  the  land  owned  by  individuals,  (2)  public  lands,  (3) 
navy  yards,  arsenals,  etc.,  (4)  lakes  and  rivers,  (5)  the 
marginal  sea.  (Halleck,  I.,  ]i!S-131  ;  Bluntschli,  Arts.  270- 
i>77  :  AMieaton  (D),  §  1(54  ;  Hall,  151.) 

32.  Eminent  Domain ;  "Absolute  "  and  "  Paramount "  rights  in  the 

soil;  "Property"  and  "Domain."  (Halleck,  I.,  128-130  ; 
Wheatoii  (D),  §  103.) 

(b).    Acquisition  of  Territory. 

33.  Modes  of  acquiring  territory.  (Hall,  ij  31  ;  Halleck,  I., 
131 ;  Wheaton  (D),  §  101.) 

34.  Title  to  territory  based  on  discovery.    (Case  of  Johnson  v. 

jMcIntosli,  Cases  and  Op.,  0.) 

35.  Title  to  territory,  based    on   prior    discovery   of    the  coast, 

of  moiiths  of  rivers,  upon  occvipation,  exploration,  and 
contiguity.  (1)  The  Oregon  Territory,  Cases  and  Op.,  9  ; 
(2)  Delagoa  Bay,  11).,  11  ;    (3)  Texas,  Hall,  111-113.) 

30.  Inchoate  title  acquired  by  discovery.  Occupation,  to  give 
title,  requires  (1)  intention  to  occupy,  (2)  continuous  oc- 
cupation, (3)  to  be  a  State  act,  or  one  adopted  by  the 
State.  (Hall,  100-107 ;  Bluntschli,  Arts.  278-279  : 
Phillimore,  I.,  329  ;  Walker,  159,  100.) 

37.  Abandonment  of  territory  once  occupied.  (Santa  Lucia, 
Cases  and  Op.,  12  ;  Hall,  118.) 

38.  To  what  extent  inland  does  the  discovery  of  the  coast 
give  rights  ?  The  discovery  of  the  mouth  of  a  river  ? 
(Cases  and  Op.,  12,  note  ;  Hall,  108-110,  and  108,  note  2  ; 
Walker,  101.) 

39.  Tendency  to  change  the  law  of  occupation — Berlin  Confer- 
ence, 1885.     (Hall,  §  33."^) 

4<>.  Does  prescription  give  a  valid  title  to  territory  by  the 
rules  of  International  Law  ?     (Hall,  121-122,  §  30  ;  Philli- 


XAIli  SYLLABUS. 

more,  I.,   353-3GS  ;  AVheaton  (D),  239,  and  note  101  (L), 
303;  Creasey,  249-255.) 

41.  Acquisition  of  territory  by  accretion.  (Cases  :  The  ^4»)?f/. 
Cases  and  Op..  393  ;  Opinion  of  Attorney-General  Cush- 
ing,  76.,  16;  Phillimore,  I.,  342-345  ;  Hall,  123  ;  Creasey, 
241-249  :  Bluntschli,  Arts.  294-295.) 

42.  Acqxiisition  of  territory  by  conquest  or  cession.  (Philli- 
more, I.,  3G9-387  :  Bhmtschli,  Arts.,  2S5-28G.J 

(c)    Acquisition  of  Rights  in  Foreign  Territory. 

43.  Servitudes  in  International  Law.  (Phillimore,  I.,  388-392  ; 
Bluntschli,  Arts.  353-359  ;  Hall,  157,  note  2  ;  Creasey, 
255-259.) 

44.  The  navigation  of  rivers.  (Cases  :  1.  Opinion  of  Wheaton, 
Cases  and  Op.,  32  ;  2.  Navigation  of  the  Mississippi,  lb., 
33  ;  3.  Navigation  of  the  St.  Lawrence,  76.,  35  ;  4.  Euro- 
pean rivers,  J6.,  40  ;  Hall,  131-139  and  notes  ;  Bluntschli, 
Arts.  311-315  ;  Woolsey,  79-83  ;  Halleck,  I,,  147-152.) 

45.  Protectorates  over  semi-civilized  peoples.  (Hall,  127, 
§  38.*) 

id)    Boundaries. 

40.  The  Political  Department  of  the  Government,  in  the  United 
States,  determines  what  are  the  boundaries  iinder  treaties. 
(Foster  v.  Neilson,  Cases  and  Op.,  14  ;  in  re  Cooper — 
The  Say  ward  Case,  143  U.  S.  Eep.,  472.) 

47.  River  boundaries  are  how  determined?  (r)pimon  of 
Attorney-General  Cushing,  Cases  and  Op.,  16  ;  Bluntschli, 
Arts.  298-300.) 

4"^.  How  are  boundaries  usually  determined  in  the  case  of  lakes 
and  mountains?  (Hall,  125-126;  Bluntschli,  Arts.,  297, 
3O1-303.) 

(e).    Territorial  Wcders  of  a  State. 
49.   The    history    of  attempts    to    appropriate  the    seas,  or   por- 


SYLLABUS.  xix 

tions  of  them ;  the  contest  between  mare  clausum  and 
mare  liberum.  (Hall,  i;3U-151,  §4<);  Wheatoii's  History 
of  the  Law  of  Nations,  152-1G2  ;  Calvo,  I.,  471-470  ; 
Phillimore,  I.,  247-256  ;  Creasey,  226-231  ;  Woolsey,  §59  ; 
Cauchy  (Ed.,  1802),  II.,  92-124  ;  Wheaton  (D),  noteNo. 
113  ;  Walker,  103-171.) 

5().  The  origin  of  the  rule  limiting  the  territorial  right  of  a  State  in 
the  sea  to  a  marine  league  from  the  shore.  Terrae  dominium 
flnitur  ubi  finitur  armorum  vis."  (Phillimore,  I.,  274  et  seq.; 
Hall,  151-153  ;  Wheaton  (D),  §  189  and  note  No.  105  ; 
Creasey,  233-240  ;  Walker,  171-175  ;  The  Case  of  The 
Queen  v.  Keyn,  Cases  and  Op.,  55  ;  Woolsey,  08-70  ; 
Halleck,  I.,  §§  13-14  ;  Calvo,  I.,  477-480  ;  Wharton's  Dig., 
§32.) 

51.  Bays,  Gulfs,  and  Straits,  which  are  more  than  six  miles  wide. 
(1,  The  Sound  Dues,  Cases  and  Op. ,  41 ;  2.  The  Bosphorus 
and  the  Dardanelles,  lb.,  43  ;  3.  Regina  v.  Cunningham, 
Ih.,  44  ;  4.  Cable  Co.  v.  Telegraph  Co.,  Ih.,  45  ;  5  Man- 
chester V.  Massachusetts,  lb.,  47  ;  6.  The  Grange,  lb.,  47 
n.,  see  also  :  Hall,  153-156  ;  Bluntschli,  Art.  309  ;  Perels, 
42^6  ;  Woolsey,  76-79  ;  Halleck,  I.,  139-145  ;  Calvo,  I., 
480-506  ;  Wharton's  Dig.,  §  28,  29.) 

52.  Interoceanic  Canals— Suez  Canal  neutralized.  (Calvo,  I.,  507- 
516  ;  Boyd's  Wheaton,  §  205  b.  &  c.  ;  T.  J.  Lawrence,  Es- 
say^i,  37.) 

III.  Territorial  Jurisdiction. 

(a)  Doctrine  of  Exterritoriality — Exception  to  the   Rule  of 
Exclusive  Territorial  Jurisdiction. 

•^3.  Sovereigns  are  exempt  in  their  persons  and  property  from  the 
jurisdictionof  foreign  courts  of  law.  (1.  Yavasseurv.  Krupp, 
Cases  and  Op.,  72;  2.  De  Haber  v.  Queen  of  Portugal, 
lb.,  76  ;  3  Prioleau  V.  U.  S.  and  Andrew  Johnson,  lb.,  77  ; 
4.  U.  S.  V.  Wagner,  lb.,  79  ;  5.  other  cases,  lb.,  82,  note. 
And  see  :  Hall,  162-167  ;  Phillimore,  IL,  133-155  ;  Blunt- 
schli, Arts.  129-134.) 

54.    Diplomatic    Agents— Iramunities  from  Criminal  Jvirisdiction 


XX  SYLLABUS. 

(1.  Bishop  of  Ross,  Cases  and  Op.,  83  ;  2.  Mendoza,  lb., 
85  ;  3.  Da  Sa.  lb.,  ^Q  ;  4.  Gyllenborg,  lb.,  87;  5.  Cella- 
mare,  lb..  ^^.  And  see  :  Hall,  108-170  ;  Halleck,  I.,  287 
298  ;  Phillimore,  II.,  199-218.) 

55.  Diplomatic  Agents— Immunities  from  Civil  Jurisdiction.  (1-  Am- 
bassador of  Peter  the  Great,  Cases  and  Op.,  89  ;  2.  Taylor 
V.  Best,  lb.,  90  ;  3.  Wheaton's  Case,  lb.,  94  ;  4.  Baron  de 
Wrech.  iZ>.,  97;  5  Dubois,  B).,  98  ;  6  Dillon.  lb.,  99;  T. 
Other  cases,  lb.,  102,  note.  See  also  :  Hall,  170-179 ; 
Halleck.  I.,  285-287;  Bhmtschli,  Arts.  135-153;  Philli- 
more,  II..    219-21(1  :    AVheaton.    (D),   299-320,    (L),   392- 

5(5.  Armed  Forces  and  Ships  of  War  in  foreign  territory  are  not 
subject  to  the  local  jurisdiction.  (1.  Exchange  V.  McFaddon, 
Cases  and  Op..  103  :  2.  The  Constitution,  lb..  114  and  115, 
note.  And  see  :  Hall,  182-195  ;  Wheaton  (D),  §  100  and 
notes,  Xos.  01  and  03  ;  Wharton's  Dig.,  §  30  ;  Halleck  I., 
170-19(1  :  Bluntschli.  Art.  321  :  Phillimore.  I..  470-483.) 

57.  Public  ships  other  than  ships  of  war  are  not  subject  to  civil  pro- 
cess in  foreign  ports.  ^The  Furleuieut  Beige,  Cases  and  Op. , 
110  and  12(».  note  ;  Hall,  §  57.) 

58.  Merchant  vessels  are  not,  as  a  general  rule,  exempt  from  the 
local  jurisdiction,  in  foreign  ports.  (1.  The  A'e^-foii^andthe 
Sally,  Cases  and  Op.,  121  ;  2.  The  Temj^est,  lb.,  122  ;  3. 
U Anemone,  lb.,  124  ;  4.  Wildenhus,  lb.,  126  ;  5  Ellis  v. 
Mitchell,  lb.,  133;  0.  The  Creole,  76.,  130;  T.  Other 
cases,  lb..  132,  note.  And  see  Hall,  198-201  ;  HaUeck,  I., 
190-192  :  Bluntschh  ;  Phillimore,  I.,  483-487.) 

59.  Reasons  for  the  fiction  of  Exterritoriality— The  reasons  usually 
given  criticised.  (Hall,  190,  r.t7  ;  AVheaton  (D),  3()3,  3u4, 
note.) 


00. 


{h)  RigJif  of  Asj/lum. 

Legations  do  not,  as  a  rule,  grant  asylum  to  political  refugees 
nor  to  fugitives  from  justice- Exception,  in  the  case  of  Spanish 
American  States.  <  1.  Duke  of  Ripperda,  Cases  and  Op.,  139; 
2.  U.  8.  V.  Jeffers,  lb.,  140  ;  3.  Opinion  of  Secretary  Fish, 
Ih.,  142.  See  also  :  Hall,  176-179  ;  Bluntschli,  Arts.  151, 
200,  201.) 


SYLLABUS.  Xxi 

CI.  Whether  ships  of  war  may  grant  asylum  to  political  refugees, 
opinions  diflfer.  It  is  the  common  practice  in  Spanish  American 
waters.— (John  Brown  Cases  and  Op.,  14i  and  14»j,  note.) 

62.  Ilerehant  ships,  having  no  immunities  from  foreign  jurisdiction, 

by  International  Law,  cannot  properly  grant  asylum  to  political 
or  other  refugees.  (1.  Sotelo,  Cases  and  Op.,  147  ;  2.  Opin- 
ion of  Lord  Aberdeen,  Ih.,  148;  3.  Gomez,  Ih.,  149;  4. 
Barmndia,  Ih.,  150,  note;  J.  B.  Moore,  in  the  PoUtical 
Science  Quarterly  for  1892.) 

(c)  Other  Questions  of  Territorial  Jurisdiction. 

63.  Jurisdiction  over  passing  vessels.  (Hall,  201-203  and  notes  ; 
The  Queen  v.  Keyn.) 

64.  Are  aliens  exempt  from  military  duty?  (Hall,  204-206  ;  Blunt- 
schli.  Art.  31)1  ;  Wharton's  Digest,  §  202.) 

65.  Are  offenses  committed  by  foreigners,  beyond  the  limits  of  a 
State,  subject  to  the  Jurisdiction  of  its  Courts  ?  (Case  of  Cut- 
ting, Cases  and  Op.,  172  and  174,  note  ;  Hall,  206-209  and 
notes  ;  Wharton's  Philosophy  of  Orim.  Law,  309  et  seq.  ; 
Fiore,  in  R.  D.  I.,  XL,  302-319.) 

^^^.  Criminal  Jurisdiction  of  the  State  Courts  in  the  United  States. 
(U.  S.  V.  Bevans,  3  Wheaton's  Rep.,  336  at  3st;.) 

67.  Extradition  of  fugitives  from  Justice— 1.  It  is  not  a  duty  under 
International  Law,  in  the  absence  of  treaty— 2.  In  the  United 
States  it  is  exclusively  a  Federal  question—S.  A  person  extra- 
dited is  to  be  tried  for  that  offense  only  for  w^hich  he  w^as  extra- 
dited. (1.  U.  S.  V.  Rauscher,  Cases  and  Op.,  151  and  157, 
note  ;  2.  Arguelles,  Moore,  on  Extradition,  I.,  33,  Spear, 
on  extradition,  13-14;  3.  Ex  parte  Holmes,  Moore  L,  55- 
58  ;  Spear,  20  ;  Winslow,  Moore,  L,  196,  212.) 

68.  As  to  the  surrender,  under  extradition  treaties,  by  a  State  of 
its  own  citizens.  (Case  of  Trimble,  Cases  and  Op.,  158  and 
160,  note  ;  Moore,  on  Extradition,  L,  152-193.) 

69.  states  do  not,  as  a  rule,  surrender  persons  charged  with  poli- 
tical or  military  offenses— What  is  a  political  offense?  (1. 
Cazo,  Cases  and  Op.,  161  ;   2.  St.  Albans  Raid,  lb.,  162  ; 


XSU  SYLLABUS. 

3.  In  re  Castioni,  Ih.,  103  and  171,  note  ;  Moore,  I.,  303^ 
326  ;  Heffter,  §  63  ;  Bluntschli,  Art.  3i»4  ;  Walker,  236- 
23S.) 

7r>.  Leading  works  on  Extradition.  (Billot:  Traite  de  I'Extra- 
dition,    1^7-1:  ;    S.    Spear.    1S7!>  ;    E.    Clarke,  ;  J.   B. 

Moore,  lsi>l  ;  De  Stieglitz  ;  L.  Lammasch.) 

7 1 .  Extraterritorial  acts  of  persons  by  order  of  their  Government. 
l^Case  of  McLeod,  Cases  and  Op.,  175  ;  Hall,  213-219  ; 
^lieaton(L),  1S9,  note.) 

82.  The  Extraterritorial  acts  by  a  State  in  self-defense.  (1.  The 
Caroline.  Cases  and  Op.,  177  ;  2.  Seizure  of  St. 
Marks,  lb.,  178  ;  3.  The  Virginius,  lb.,  179.  See  Hall, 
265-274.) 

73.  Responsibility  for  injury  to  foreigners  by  civil  commotions  and 
mob  violence.  (TheXew  Orleans  Eiot,  1851,  Cases  and  Op., 

1>1 :  New  Orleans  Mob,  1891,  lb.,  183,  note  ;  James  Bryce, 
in  the  Xew  Review  for  May,  1891  ;  Calvo,  4th  Ed.,  III., 
142-150  :  Bluntschli,  Art.  380  bis  ;  Hall,  218-219.) 

IV.  Jurisdiction  on  the  High  Seas. 

74.  Is  the  jurisdiction  of  a  State  over  its  citizens  and  property  on 
the  high  seas  exclusive?  (Hall,  243-244  ;  Wheaton  (D), 
^,^  Iu0-lu7). 

75.  Theory  of  the  territoriality  of  merchant  vessels.  (Hall,  244- 
251  ;  Bluntschli,  Art.  317  ;  Heffter,  ,^  78.) 

76.  Impressment  of  Seamen.  (Wheaton  (D),  §  108-109  and  note 
07.j 

I  7.  Jurisdiction  over  merchant  vessels  on  the  high  seas.  (1.  The 
-l/a/a///r(.  Cases  and  Op..  1^1;  2.  John  Anderson,  lb., 
185  ;  3.  Regina  v.  Leslie,  lb.,  ls7  ;  4.  The  Belgenland, 
lb.,  189.) 

i  8.  Municipal  Seizures  beyond  the  Three-mile  Limit.  (Case  of 
Church  v.  Hubbart.  Cases  and  (Jp.,  193  and  194,  note  ; 
Argument  of  E.  J.  Phelps  before  the  Behring  Sea  Tri 


SYLLABUS.  xxiii 

bnnal  Am.  Case,  150  ;  Act  of  Congress,  March  2,  1797, 
§  27  ;  Dana's  note  to  Wheaton,  Xo.  lOS  ;  Boyd's  Wliea- 
ton,  §17'Ja,  AVharton's  Digest,  I.,  pp.    105,  lOG,  lOD-112.) 

79.  Piracy— Definition  and  character  of  Piracy  jure  gentium. 
{I.  Opinion  of  Sir  L.  Jenkins,  Cases  and  Op.,  l'.>.j  ;  2. 
U.  S.  V.  Smith,  lb.,  196  ;  3.  Other  cases  in  the  U.  S.  Sup. 

Court  are,  U.  S.  v.  Palmer,  3  Wh.,  010  ;  U.  S.  v.  Klintock, 
5  AVh.,  152  ;  U.  S.  v.  Pirates,  lb.,  185  ;  U.  S.  v.  Hohnes, 
lb.,  412.  See  also:  Lawrence's  note  to  Wheaton,  No. 
79  ;  Hall,  252-201  ;  Phillimore,  I.,  4S9  ef  seg. ;  Bluntschli, 
Arts.  313-352.) 

80.  May  Rebels  and  Insurgents  be  regarded  as  Pirates  ?  Piracy  by 
MunicipalLaw.  {\.  U.  8.  v.  The  Ainbrose  Li<jht,  Cases  and 
Op..  200  and  204,  note;  2.  The  Magellan  Pirates,  lb., 
205;  3.  The  Montezuma,  lb.,  206;  4.  The  Hnascar,  Ilh, 
208.  See  also  :  IT.  S.  v.  Baker,  5  Blatch.,  6,  and  Whar- 
ton's Dig.,  III.,  404;  The  Chesapeake,  lb.,  I.,  72;  The 
Carthagenian  Insurgents,  lb.,  III.,  466,  and  Hall,  261. 
And  see :  Hall,  261-264  ;  Calvo,  §§  1146-1148  ;  AVoolsey, 
§  145  ;  Wheaton  (D),  196,  note.) 

81.  The  Slave  Trade  is  not  Piracy  jure  gentium.  (Case  of  Le 
Louis,  Cases  and  Op.,  209;  The  Antelope,  10  Wheaton, 
QG.  See  also  :  Wheaton  (D),  §§  125-133,  and  notes  85-89  ; 
Woolsey,  §  146.) 

V.   Intervention. 

82.  Character  of  Intervention— Conditions  of.  (Hall,  281-288  ; 
Bluntschli,  Art.  474 ;  Wheaton  {D),  §  63 ;  Wharton's 
Dig.,  I.,  §  45  ;  Phillimore,  I.,  553-638  ;  Heffter,  108-111  ; 
Creasey,  278-296.) 

83.  Intervention,  on  the  ground  of  self-preservation,  for  the  pro- 
tection of  (1)  institutions,  (2)  good  order,  (3)  the  external 
safety  of  the  intervening  State.  (^Hall,  283-285  ;  Pomeroy, 
245  ;  Creasey,  297-308). 

84.  Intervention  against  illegal  or  immoral  acts — Case  of  Greece, 

1826  ;  Bidgaria,  1876.     (Hall,  286.) 


XXIV  SYLLABUS. 

85.  Intervention  under  a  treaty  of  guarantee— by  invitation  of 
one  of  the  parties  in  a  civil  war— under  collective  authority 
of  the  body  of  States.  (Hall,  289-293;  Bluntschli.  Art. 
•i7<'»  :  the  case  of  the  Allies  in  1821,  in  Spain  and  Italy; 
Belgium,  1830  ;  U.  S.  in  Peru,  1881.) 

VI.  Xafionality. 

80  In  what  does  Nationality  consist  ?  The  Doctrine  of  Indelible 
Allegiance.— Expatriation.  (1.  Opinion  of  Cockburn,  Cases 
and  Op.,  213;  2.  Macdonald's  case,  lb.,  214;  3.  Isaac 
Williams,  lb.,  215,  note  ;  4.  Legislation  on  Expatriation, 
I!).  ;  5.  Message  of  President  Grant,  lb.,  210  :  0.  Alibert's 
case,  lb.,  218  and  219,  note.  See  also  :  Hall,  220-232  ; 
Wheaton  (L),  891  et  seq.  ;  Creasey^  357  ;  Halleck,  I., 
348  et  seq. ;  Walker,  204-218  ;  Heffter,  130-138  ; 
Wharton's  Digest,  ^  171  ;  Calvo,  II.,  24.) 

87.  Citizenship— Naturalization.  (Cases  :  Ex  parte  Chin  King, 
Cases  and  Op.,  219  ;  Hausding's  case,  lb.,  222  ;  Emden's 
case,  76.,  223  ;  Prussian  Subject,  lb.,  224.  See  also.  Hall, 
232-237  ;  Phillimore,  I.,  443-459  ;  Wharton's  Dig.,  §§  173- 
174  ;  Halleck,  I.,  350.) 

88.  If  a  naturalized  citizen  returns  to  his  native  land,  what 
are  his  rights?  (Case  of  Wagner,  Cases  and  Op.,  225; 
Wharton's  Dig.,  II.,  g^  181-182.) 

89.  Nationality  of  children  born  abroad  ;  of  illegitimate  chil- 
dren; of  married  women.     (Hall,  224.) 

90.  What  is  the  effect  of  domicil,  and  a  declaration  of  inten- 
tion to  become  a  citizen,  upon  the  nationality  of  a  foreigner  ? 
— Is  he  entitled  to  the  protection  of  his  adopted  State  when 
he  goes  abroad?  (Case  of  Koszta,  Cases  and  Op..  22<)  ; 
Tousig's  case,  lb.,  228.  And  see  :  Hall,  237-241  ;  Hal- 
leck, I.,  357;  Woolsey,  502;  Calvo,  II.,  45;  Wharton's 
Dig.,  II.,  397.) 

ftl .  Persons  destitute  of  nationality — Heimathlosen. — (Hall,  241 ; 
Bluntschli,  Art.  309.) 

92.   Status  of  the  Chinese  in  the  United  States.— Treaty  of  1880, 


SYLLABUS.  XXV 

and  Acts  of  Congress  of  May  6,  1882,  July  5,  1884,  and  the 
Geary  Act  of  1892.— Under  the  fourteenth  Amendment  to 
the  Constitution,  Chinese  children  born  in  the  United  States 
are  citizens  thereof.— It  was  so  held  in  the  case  of  Look 
Tin  Sing,  35  Fed.  Rep.,  354,  and  in  the  case  of  Chin  Sing. 

93.  Status  of  Indians  in  the  United  States.  Indian  tribes 
designated  by  Marshall,  C.  J.,  in  1831,  as '' Domestic 
Dependent  Nations  "  (the  Cherokee  Nation  v.  Georgia,  5 
Peters'  Rep.,  1.)  Since  1871  no  formal  treaties  have  been 
made  with  tribes,  and  they  have  been  subjected  to  the 
authority  of  Congress.  But  in  ISS-l,  the  Supreme  Court 
held  that  an  Indian  born  in  a  tribe,  though  having  left  it, 
was  not  a  citizen,  and  the  fourteenth  amendment  did  not 
api^ly  to  him.  By  the  legislation  of  1885,  however, 
Indians  even  in  tribes  have  been  generally  subjected  to 
the  jurisdiction  of  the  Federal  Courts  ;  and  it  would  seem 
that  they  should  now  be  citizens  by  birth  under  the  four- 
teenth amendment.  (1.  Elk  v.  Wilkins,  Cases  and  Op., 
230  ;  2.  U.  S.  V.  Kagama,  Ih.,  233  ;  and  see  the  case  of 
Crow  Dog,  109  U.  S.  Rep.,  556;  Wharton's  Dig.,  II., 
532.) 

VII.  International  Agents  of  a  State. 

94.  Persons  designated  by  the  Constitution  of  a  State  to  manage 
its  Foreign  Affairs- Department  of  Foreign  Affairs— State 
Department,  in  the  United  States.    (Hall,  294,  295.) 

95.  Diplomatic  Agents.  (1.  Ambassadors,  Legates,  Nuncios. 
2.  Envoys  and  Ministers  Plenipotentiary.  3.  Ministers 
resident.  4.  Charges  d' Affaires.  The  first  three  classes 
are  accredited  to  the  Sovereign,  the  fourth  to  the 
Minister  of  Foreign  Affairs.) 

96.  nights  of  Diplomatic  Agents— Refusal  to  receive  a  Minister- 
must  be  persona  grata— Credentials  ;  Letters  of  Credence, 
Letters  Patent ;  Full  powers  ;  Instructions  ;  Passport.  (Hall, 
296-301  ;  Bluntschli,  Arts.  159-190  ;  Wheaton  (L),  273- 
293  ;  Phillimore,  II.,  156-198,  246-264  ;  Halleck,  L,  300- 
304  ;  Calvo,  HI.,  §  1312  et  seq.  ;  Woolsey,  126-135  ; 
Heffter,  479-484,  491-499,  507-514  ;  Wharton's  Dig.,  L, 
§§  82-83.) 


XXVI  SYLLABUS. 

1'  i  •  Termination  of  Mission— Recall,  and  Dismissal.  (Hall,  301- 
ai  '5  ;  W'lieaton  (D),  %  25u  ;  Wharton's  Dig.,  §  ft-i  ;  Heffter, 
51G-522  ;and  lb.,  522-545  "L'Art  Diplomatique  ;  "  Blunt- 
schli,  Arts.,  227-240.) 

9S.  Ambassadors'  Rights  in  friendly  States,  on  their  way  to  or 
return  from  their  posts.  (Hall,  §>>  99-l<»l  ;  Phillimore,  II., 
215-21S  ;  Heffter,  488-400  ;  Woolsey,  §  97  ;  Wheaton  (D), 
§§244-247.) 

99.  Consuls :  Origin  of  ofifice— Functions— Appointment — Dismissal 
— Privileges— Consuls  Diplomatically  accredited— "  Lettre  de 
provision  "—Exequatur.  (^Schuyler's  *'  American  Diplo- 
macy," 41-104  ;  Hall,  314-322  ;  Wheaton  (D),  §  120  ; 
Phillimore,  II.,  265-336;  Heffter,  555-566;  W^oolsey, 
152-157;  Calvo,III.,  §1368-1390;  Halleck,  L,  310-330; 
Wharton's  Digest,  §§  113-124.) 

100.  Judicial  Functions  of  Consuls  in  semi-civilized  lands. 
(Phillimore,  II. ,  3o7-o42  ;  Halleck,  I.,  o3u-347  ;  Wharton's 
Dig.,  §125.) 

VIII.  Treaties. 

101.  What  Treaties  are  not  subjects  of  International  Law  ?  (Hall, 
323  and  note  ;  Bluntsclili,  Art.  443.) 

1'^'2.  Kinds  of  Treaties— Conditions  necessary  to  the  validity  of 
Treaties— Authority  of  persons  contracting— Freedom  of  Con- 
sent—Intimidation—Fraud, etc.  (Hall,  323-327  ;  Heffter, 
190-204;  Woolsey,  159-104;  Wheaton  (D),  §§252-262; 
Halleck,  I.,  234-237  ;  Bluntschli,  Arts.  402-424,  442  ;  Phil- 
limore, II.,  68-83  ;  Pomeroy,  340  et  seq.) 

1  o  3 .  Forms— Tacit  and  express  ratification— Refusal  to  ratify —Com- 
pletion of  ratification.  (Hall,  329-334  ;  Pomeroy,  332  ; 
AVheaton  (^Dj,  ^§  256-264.) 

lo4.  Interpretation  of  Treaties.  Convention  of  1818  between  Eng- 
land and  the  United  States  (Fisheries),  the  Clayton-Bulwer 
Treaty  (1850.)  (Hall,  334-342  ;  Heffter,  §  95  ;  Woolsey 
]7:M74  :  Phillimore,  II.,  94-125  ;  Wheaton  (D),  §  287.) 


SYLLABUS.  XXvii 

105.  Conflict  between  diflferent  Treaties,  or  between  different  Parts 
of  the  same  Treaty.  (Hall,  340-842;  Pliilliniore  II.,  12G- 
lo-2  ;  Calvo,  ^,§  720-723  ;  Bluntschli,  Art.  414.) 

lOG.  Treaties  of  Guarantee.  (Hall,  342-345  ;  Bluntschli,  Arts. 
4;]7-44(t  ;  Pliilliniore,  II.,  84-93  ;  Woolsey,  100-170 ; 
Heffter,  §  97.) 

107.  Legislation  necessary  to  carry  treaties  into  effect— Is  the 
House  of  Representatives  in  the  United  States  under  obliga- 
tion to  pass  acts  necessary  to  carry  treaties  into  effect  ?  The 
Jay  Treaty,  1794,  The  Alaska  Treaty,  1867.  (Wheaton  (D), 
§200  ;  Halleck,  I.,  222-224;  Calvo,  III.,  §§  1043-1047; 
Wharton's  Dig.,  §  Vila.) 

108.  A  Treaty  dates  from  the  time  of  Signing,  not  from  that  of 
Ratification. 

109.  The  obligation  of  Treaties— Difference  between  a  void  and  a 
voidable  Treaty— Test  of  voidability.  (Hall,  351,  359  ; 
Creasey,  40-44;  Phillimore,  II.,  70;  M.  Bernard,  ''Lec- 
tures on  Diplomacy,"  108  ;  Heffter,  §  98;  Bluntschli,  Arts. 
415,  450-401;  Pomeroy,  347;  Maine:  "Ancient  Law," 
23;  Fiore,  Part  I.,  Chapter  IV.;  Halleck,  I.,  243,  244  ; 
Wharton's  Dig.,  137^?.) 

11<».  Most  favored  Nation  Clause  in  Commercial  Treaties.  (Whar- 
ton's Dig.,  §  134.) 

111.  Renewal  of  Treaties.     (Hall,  117.) 

IX.  Amicable  Settlement  o^^  Disputes  and  Attempts  to 
Mitigate  the  Evils  of  War. 

112.  Arbitration-Mediation.  (Hall,  301-303  ;  Bluntschli,  Arts. 
488^98  ;  Calvo,  §  1700  et  seq.;  Rouard  de  Card,  "  L'Arbi- 
trage  International  ";  Creasey,  397-399  ;  Wharton's  Dig., 
§  310  ;  Sheldon  Amos  :  "  Political  and  Legal  Remedies 
for  War";  R.  D.  J.,  VI.,  117-128,  421-452,  VII.,  57-09, 
277,  418,  423-420,  708,  VIII.,  107,  X.,  001  ;  Halleck,  I., 
413-418  ;  Phillimore,  III.,  1-17.) 

113.  International  acts  and  movements  with  a  view  to  mitigate  the 


xxviii  SYLLABUS. 

evils  of  war.  (The  "  Declaration  of  Paris,"  Appendix  B  ; 
The  -'Dedaration  of  St.  Petersburg,"  lb.,  C:  The 
''Geneva  Convention."  Il>.,  D  ;  The  "  Brussels  Congress," 
isT-t.  See  on  this  Congress  :  Revue  de  Droit  International, 
VII.,  8",  438  ;  Diplomatic  Review,  III.,  U  et  seq.;  Halleck, 
I.,  418-421  and  notes  ;  Calvo,  lY.,  §  1898.) 

114.  Acts  of  Individuals  and  Societies:  Founding  of  the  "Insti- 
tute of  International  Law,"  1871,  and  the  "Association  for 
the  Reform  and  Codification  of  International  Law,"  at  about 
the  same  time.  (Annuaire  del'Institute,  I..  27  ;  R.  D.  J., 
VII.,  307.  For  code  of  the  "  Institute,"  etc.,  see  Appen- 
dix, F  ; "  and  for  Von  Moltke's  criticism  of  it,  see  his  letter 
to  Bluntschli,  R.  D.  J.,  XIII.,  79  et  seq.) 


PART  II. 

INTERNATIONAL  RELATIONS  AS  MODIFIED   BY 

AVAR. 

I.  Measures  short  of  War— Definition  of  War— Declara- 
tion OF  AYar. 

115.  Reprisals— Retorsion— Pacific  Blockade.  (1.  Silesian  Loan, 
Cases  and  Op., 243  ;  2.  Don  Pacifico,  lb.,  246;  3.  Other 
Cases,  lb.,  248,  note.  And  see  :  Hall,  364-373  ;  Wheaton 
(D),  §§  290-292  and  note  No.  151 ;  (L),  pp.  505-510  and 
note  No.  168 ;  Bluntschli,  Arts.  499-508  ;  Halleck,  L, 
422-42S:  Phillimore.  III.,  §  18-43  ;  Calvo,  III.,  §  1809  et 
seq.;  Heffter,  §§  ll'i-ll2  ;  Woolsey,  181-187;  Walker, 
1.54-158.) 

11<"'.  Hostile  Embargo.  (The  Boedus  Lust,  Cases  and  Op., 
24". •  and  note.  See  also  :  Hall,  373  ;  Wheaton  (D),  ^  293 
and  note  No.  152  ;  Halleck,  I.  433  ;  Phillimore,  III.,  44- 
4l>  ;  Calvo,  III.,  §  1824  et  seq.  ;  Woolsey,  180.) 

1 1 7.  Declaration  of  War— War  without  a  Declaration— Civil  War- 
Date  of  the  beginning  of  a  War.  ( 1 .  The  Te  utou  ia.  Cases  and 
Op.,  250  ;  The  Prize  Cases,  lb.,  254.  And  see  :  Hall,  374- 
382;  Heffter,  §  121  ;  Halleck,  L,  474-480;  Phillunore, 
III.,  8.5-113  ;  Calvo,  lY.,  ^  lSi>9  et  seq.) 


SYLLABUS.  xxix 

lis.   Definition  of  War— Its  Object— Causes  of  War— Kinds  of  War. 

(Creasey,  3(;o-8<>2  ;  Heffter,  ^§  113,  111)  ;  Philliiiiore,  III., 
77-84  ;  Halleck,  I.,  43i)-453,  454-473  ;  Bluntsclili,  Arts. 
510-528  ;  Wheaton  (D),  §  296  ;  Calvo,  IV.,  1-40  a  resume 
of  opinions  of  writers  ;  Woolsey,  210.) 

II.  Effects  of  War  as  between  Enemies. 
(a)  LatDS  and  Usages  of  War — Conduct  of  Hostilities. 

119.  Who  are  enemies  in  a  war?  One  theory  is  that  all  citizens  or 
subjects  of  one  belligerent  state  are  the  enemies  of  all  the  citizens 
or  subjects  of  the  other.  Another  theory  is  that  war  is  a  contest 
between  states,  and.  that  private  individuals  of  the  belligerent 
states  are  not  enemies  at  all.  The  first  is  the  old  view,  and  is 
still  supported  by  the  better  authority.  (Creasey,  376-388  ; 
Calvo,  §§  2035-2036  ;  Halleck,  II.,  52-53  ;  Bluntsclili,  Arts. 
529-530  ;  Woolsey,  550  ;  Walker,  273.) 

120.  All  peaceful  relations  between  the  belligerent  States  and  their 
citizens  cease  on  the  breaking  ovit  of  war.  But  modern  usage 
permits  alien  enemies  to  remain  in  the  territory  unmolested 
unless  their  presence  becomes  dangerous  to  the  state.  (Hall, 
389-393  ;  Heffter,  p.  289  and  note  9  ;  Calvo,  §§  1912-1914; 
Phillimore,  III.,  128-130  ;  Halleck,  I.,  483-485.) 

121.  Who  are  Non-Combatants  ?  (Hall,  394-396  ;  Woolsey,  216- 
221  ;  Halleck,  II.,  2-3.) 

122.  Who  are  lawful  Combatants  ?— Conditions— Authority— Organ- 
ization—Dress.  (Hall,  396,  51J— 525  and  notes  ;  Halleck,  II., 
6-9  ;  Bluntsclili,  Arts.  569-573  ;  Calvo,  §§  2049-2058  ; 
Walker,  249  ;  Woolsey,  214-215.) 

123.  Maritime  War. — Privateers— Letters  of  Marque  and  Reprisal- 
Volunteer  Navy.  (Hall,  525-529  ;  Wheaton  (D),  g  358  and 
note  No.  173  ;  Wharton's  Digest,  §§  383-385 ;  Calvo, 
§  2297ef  seg.  ;  Halleck,  II.,  9-20  ;  Woolsey,  201-208  ;  Heff- 
ter, §  124  ;  Declaration  of  Paris,  Appendix  B.) 

124.  Prisoners  of  War.— Who  may  be  taken  prisoners  ?— Treatment- 
Parole— Exchange— Ransom.  (Hall,  403-413  ;  Halleck,  II., 
3n.,  74-89;  Davis,  233-237 ;  Creasey,  452-458  ;  Calvo, 
§§  213.3-2157  ;  Bluntsclili,  Arts.  593-626.) 


X  XX  SYLLABUS. 

125.  Care  of  the  sick  and  wounded— Geneva  Convention— Red-Cross 
Society.  (^Hall,  o;t'.t-4t»o  ;  Bluntsclili,  Arts.  5^tJ-.592  ;  Calvo. 
§  2034  et  seq.  ;  Moynier  :  "Le  Croix  Rouge"  ;  Boyland  : 
"  Six  Months  under  the  Eed  Cross.") 

126.  Instrumentsof  War— Means  of  Destruction.  (Hall.  529-531  ; 
Halleck.  II.,  2o-22  ;  Woolsey.  211-213;  Bluntschli,  Arts. 
557-500  ;  Heffter,  §  125  ;  St.  Petersburg  Declaration.  Ap- 
pendix D.) 

127.  Devastation.— Is  it  ever  lawful  ?  (Hall,  533-534  ;  Halleck, 
II.,  117-llU.) 

128.  Bombardmentoftowns— Fortified- Open.  (Hall,  535  ;  Davis, 
219-222  :  AVoolsey,  223-224  :  Bluntschli,  Arts.  552-554.  his; 
Calvo  ;  §§  2067-2095.  All  the  important  cases  will  be 
found  in  Calvo.) 

129.  Deceit— Spies-BaUoons.  CHall.  535-5.3{)  ;  Halleck,  II..  22- 
35  ;  Calvo,  §.^21uG-212C  ;  Bluntschli,  Arts.  627-636  ;  Davis, 
241-244.) 

{h)  Effect  of  War  upon  Property,  and  Commercial  Relations 

tvith  the  Enemy. 

130.  Wtien  war  breaks  out  between  two  states,  the  movable  or  per- 
sonal property  of  citizens  of  either,  found  in  the  territory  of  the 
other,  on  land,  was  by  the  old  and  strict  rule  of  war  confiscable. 
Debts  due  to  citizens  of  the  enemy  State  followed  the  same  rule. 
But  in  modem  practice  this  rule  has  become  nearly  obsolete. 
(1.  Ware  v.  Hylton,  Cases  and  Op.,  260  ;  Brown  v.  United 
States,  lb.,  263  ;  Ex  parte  Boussmaker,  lb.,  267  :  Wolff 
v.  Oxhohn,  Ih.,  268.  See  also  :  Hall,  435-440  ;  Halleck, 
I.,  485-492  ;  T^Tieaton  (D),  §§  298-308  and  notes  No.  156 
and  157  :  Phillimore,  III.,  128-148  ;  Woolsey,  194-198  ; 
Heffter,  §  14n  ;  Calvo,  §§  1915-1925.) 

131.  Property  of  the  enemy  found  afloat  in  ports,  on  the  breaking 
out  of  war  was  generally  confiscable  as  prize  until  a  very  recent 
time.  But  here.  too.  later  practice  would  seem  to  have  discarded 
the  harsher  rule.  Compare  with  Embargo— case  of  Boedus  Lust. 
(Phillimore,  III.,  132  ;  Wheaton  (D),  389,  note  i  Halleck, 
I.,  491—492  ;  The  Johanna  Emilie,  Cases  and  Op.  270,  n.) 


SYLLABUS.  XXX  i 

132.  Debts  of  a  State  due  to  the  Enemy  and  the  interest  thereon  are 
not  confiscable.  (Hall,  4:35  ;  Woolsey,  lUG  ;  Discussion  in 
the  case  of  the  Silesian  Loan  ;  Phillimore,  III,,  118.} 

133.  Immovable  property— lands  and  houses— of  the  enemy 
within  the  limits  of  the  other  belligerents  are  never  con- 
fiscated.    (Phillimore,  HI.,  148.) 

134.  Property  of  the  enemy  fctmd  on  the  sea  or  in  the  ports 
of  the  enemy,  is  confiscable  as  prize  of  war— Modified  by 
the  Declaration  of  Pans.  (Appendix  B.  Hall,  435,  §  143, 
and  442,  §146.) 

135.  Contracts  between  enemies  made  before  the  war.— 1. 
Executed  Contracts.— 2.  Executory  Contracts.- Statutes  of 
Limitation.— Interest  on  Debts.— How  affected  by  war  ? 
(1.  Hanger  v.  Abbott,  Cases  and  Op.,  270  ;  2.  Griswold 
V.  Waddington,  Ih.,  274;  3.  N.  Y.  Life  Ins.  Co.  v. 
Stathem,  Ih.,  278.  See  also  :  Gamba  v.  Le  Mesiirier,  4 
East.,  407  ;  Halleck,  I.,  481 ;  Walker,  276  ;  Hall,  388  ; 
Kent,  L,  68.) 

136.  Effect  of  war  upon  treaties  between  the  belligerent  States 
previously  existing.  (^Wheaton  (L),  460-477  iD),  352  and 
note  ;  Hall,  382-387  ;  Phillimore,  III.,  792-811  ;  Bluntschli, 
Art.  538  ;  Case  of  the  Society  for  the  Propagation  of  the 
Gospel  V.  New  Haven,   Wheaton's   Eep.,    494  ;   Heffter, 


122.) 


(c)     Trade  ivith  the  Enemy. 


137.  Trade  or  Intercourse  with  the  enemy  is  wholly  interdicted ; 
and  is  in  all  cases  illegal,  unless  under  a  license  of  the  State. 
(1.  The  Hoop,  Cases  and  Op.,  283  ;  2.  Potts  v.  Bell,  lb., 
287.  See  also  :  Hall,  387-388  ;  Kent,  I.,  66-69  ;  Halleck, 
II.,  154-158  ;  Heffter,  §  123  ;  Phillimore,  III.,  116-120  ; 
Calvo,  §§  1926-1929  ;  Woolsey,  255  ;  Wheaton  (D),  §§  309- 
317,  and  note  No.  158.) 

138.  Licenses  to  trade.— They  must,  as  a  rule,  be  granted  by  the 
Supreme  Authority  of  the  State,  and  must  be  granted  or 
assented  to  by  both  belligerents.  (Hall,  553-556  ;  Hal- 
leck, II.,  364-379  ;  Woolsey,  256.      Case  of  the  Sea  Lion, 


XXxii  SYLLABUS. 

Cases  and  Op.,    3(Ki,    gives   the  practice  of   the    United 
States  ;  also  Cappell  v.  Hall  T  Wall.,  542.) 

139.  After  the  outbreak  of  war,  a  citizen  may  not  go  or  send  to 
the  enemy's  country  to  bring  away  his  property.  (The 
Rapid,  Cases  and  Op.,  288.) 

l-lr<i.  Citizens  who  are  residing  in  the  enemy's  country,  on  the 
outbreak  of  war  should  be  granted  a  reasonable  time  to 
return  with  their  property  to  their  own  country-  (1. 
The  St.  Lawrence,  Cases  and  Op.,  2!mi  ;  2.  The  Brig 
Joseph,  lb.,  292  ;  3.  The  William  Bagalay,  lb.,  293  ;  4. 
Other  cases,  lb.,  294  n.) 

141.  Contracts  entered  into  with  enemies  diiring  war  by  citi- 
zens residing  in  the  enemy's  coujitry.  (Kershaw  v. 
Kelsev,  Cases  and  Op.,  295.) 

142.  Bills  of  exchange  drawn  by  a  citizen,  while  a  prisoner  in 
the  enemy's  country,  upon  a  person  in  his  own  country, 
and  sold  to  an  enemy— Is  this  a  trading  with  the  enemy? 
( Antoine  v.  Morshead,  Cases  and  Op.,  308  ;  and  Kent,  I., 
07  ;  Halleck,  I.,  481  ;  Wheaton  (D),  §  317.) 

143.  Agents— Right  to  employ  agents  in  the  enemy's  country- 
appointed  (1)  before  the  war— (2)  During  the  war.  (United 
States  V.  Grossmayer,  Cases  and  Op.,  298  ;  Filer's  case, 
9  Wall.,  45.) 

144.  Insurance  on  ships  of  the  enemy.  (Furtado  v.  Eodgers, 
Cases  and  Ojd.,  3()3.) 

145.  Ransom  Contracts— Ransom  Bill— Safe  Conduct— Exception 
to  the  rule  in  respect  to  trade  with  the  enemy.  (1.  Cornu 
V.  Blackburn,  Cases  and  Op.,  31<»;  2.  The  Charming 
Nancy,  lb.,  312  ;  3.  The  Patrixent,  lb.,  313  ;  4.  Anthon 
V.  Fisher  and  other  cases,  lb.,  314,  n.  See  also  :  Hall, 
459-401  ;  Halleck,  II.,  358-361  ;  Wheaton  (D),  §  411,  and 
note  No.  199  ;  Phillimore,  III.,  644-647  ;  Woolsey,  245- 
247  ;  Calvo,  §§  2422-2429.) 

146.  Pacific  intercourse    of  Belligerents— Commercia  belli :  Flags 


SYLLABUS.  XXX  iii 

of  Trtice  —  Truces— Passports— Armistices— Cartels— Capitula^ 
tions— License  to  Trade— Ransoms.  (^Hall,  ,J4<)-o.5(')  ;  Hal- 
leck,  II.,  340-363;  Woolsey,  255-260;  Blimtschli,  Arts. 
674-699  ;  Calvo,  §§  2411-2452  ;  Wheaton  (D),  §§  399- 
408.) 

(d)    Commercial  Domicil — National  Cliaracter  of  Property. 

147.  The  National  Character  of  property,  in  time  of  war,  depends 
upon  the  domicil  of  the  owner— French  Rule.  (1.  The 
Indian  Chiefs  Cases  and  Op.,  315  ;  2.  The  Prize  cases,  Ih., 
334  ;  The  Venus,  Ih.,  319  ;  4.  Le  Hardy,  lb.,  337.) 

148.  What  constitutes  Domicil — How  determined —  Animus 
manendi— Time.  (The  Harmony,  Cases  and  Op.,  326.  And 
see:  Hall,  498-500  ;  Halleck,  I.,  360-367;  Wheaton  (D), 
§§  318-332  ;  PhilUmore,  III.,  725-734  ;  Calvo,  §§  1936- 
1945.) 

149.  Hoiise  of  Trade— It  takes  the  National  Character  of  the 
country  in  which  it  is  established— Exception :  House  of 
trade  in  a  neutral  State,  and  the  partners,  or  some  of  them, 
reside  in  an  enemy  country.  (Hall,  501  ;  Wheaton  (D), 
§  334.) 

150.  The  Product  of  the  Enemy's  Soil  takes  the  National  Character 
of  the  country  where  it  is  situated.  (Bentzen  v.  Boyle, 
Cases  and  Op.,  330  ;  Hall,  502  ;  Wheaton  (D),  §§  336- 
339.) 

(e)    OwnersMj)  of  Goods  in  transitu,  on  the  Ocean,  in  time 

of  War. 

151.  In  time  of  war,  or  in  contemplation  of  war.  Goods  shipped  on 
contract  are  at  the  risk  of  the  Consignee  during  transit— The 
French  rule  permits  the  shipper  to  take  the  risk  by  agree- 
ment. (1.  The  Packet  de  Bilhoa,  Cases  and  Op.,  339  ;  2. 
The  San  Jose  Indiano,  lb.,  342  ;  3.  The  Sally,  lb.,  344  ;  4. 
The  Anna  Catharina,  lb.,  346  ;  5.  Les  Trois  Freres,  lb., 
348.  See  also  :  Hall,  506,  507  ;  Halleck,  II.,  128-137  :  Kent, 
I.,  87  ;  Calvo,  §§  2315-2320  ;  PhiUimore,  III.,  740-745.) 

152.  Transfer  in  transitu— Stoppage  in  transitu — According  to  the 
3 


XXxiv  SYLLABUS. 

rule  of  the  English  and  American  Prize  Courts,  property,  in 
hostile  at  the  time  of  shipment,  cannot  change  its  character 
during  transit  by  sale  to  a  neutral.  (1.  The  Vroiv  Mar- 
garetha.  Cases  and  (Jp.,  350  ;  2.  The  Jan  Frederick,  lb., 
352  ;  3.  The  Ann  Grreen,  lb.,  354  ;  4.  The  Francis  and 
Cargo,  lb.,  355,  note.  And  see  :  The  San  Jose  Indiano, 
lb.,  343;  Hall,  506;  Halleck,  II.,  136-138;  Duer,  "On 
Insurance,"  I.,  441-444  ;  Phillimore,  III.,  T39-740  ;  Calvo, 
§§  2321,  2322,  dissents  from  the  English  and  American 
view.) 

153.  National  character  of  merchant  ships,  and  their  transfer 
during  war  from  a  Belligerent  to  a  Neutral.  (Hall,  504- 
.^11.3  ;  Halleck,  II.,  136-144;  Phillimore,  III.,  734-739; 
Calvo,  §§  2327-2338.) 

154.  Proofs  of  the  National  Character  of  merchant  ships.  (Calvo, 
§§  2339-2366  ;  Halleck,  II.,  145-151.) 

155.  Pishing  Boats  generally  exempt  from  seizure.  (Halleck, 
II.,  151-152  ;  Calvo,  §§  2368-2373.  Does  not  apply  to 
vessels  emj^loyed  in  the  Great  Fisheries;  Hall,  449-451; 
Woolsey,  303.) 

156.  Freight  in  the  case  of  captured  vessels.  (1.  The  Vrow 
Henrica,  Cases  and  Op.,  356  ;    2.  The  Fortuna,  lb.,  357.) 

( / )     Recapture — Salvage — Postliminium — Rescue. 

157.  Recapture— Salvage— When  does  title  to  recaptured  property 
vest  in  the  Captor ?  (1.  The  Santa  Cruz,  Cases  and  Op., 
35S  ;  2.  The  Carlotta,  lb.,  360.  And  see  :  Hall,  493-495  ; 
Halleck,  II.,  524-533;  Phillimore,  III.,  615-643; 
Wheaton  (D),  pp.  456-475  ;  Woolsey,  247-252  ;  Creasey, 
564  ;  Kent,  I.,  108-109.) 

158.  Resoua  by  Neutrals.  (The  Emil/j  St.  Pierre,  Cases  and 
Op.,  361  ;  The  Love,  lb.,  363.) 

ig)   Enemy  Property  cm  Land — Military  Occupation. 

1 59.  Public  Property  of  the  Enemy— Lands,  Buildings,  Archives, 
Works  of  Art— Movable  or  personal  Property.      (Mohr   and 


SYLLABUS.  XXXV 

Haas  V.  Hatzfeld,  Cases  and  Op.,   377.      See  also  :  Hall, 
416-422  ;  Dana's  Wheaton,  438,  note  ;    Halleck,   II.,   07, 

102-108,  409-473  ;  Calvo,  §§  2201-2214.) 

100.  Private  property,  Real  and  Personal,  as  a  rule,  not  confis- 
cable, at  least  not  by  way  of  Booty,  though  personal  prop- 
erty may  be  taken  by  way  of  Contributions  and  Requisi- 
tions—Comparison in  respect  to  the  difierent  rule  applied  to 
enemy's  property  at  sea  and  on  land.  (Wheaton  (D) 
§335,  and  note  No.  171  ;  Hall,  423  et  seq.\  Creasey,  536- 
556  ;  Heffter,  §  133  ;  Bluntschli,  Art.  665  ;  T.  J.  Law- 
rence, Essays,  No.  1  ;  Halleck,  II.,  124-128 ;  Calvo, 
§  2294  et  seq.) 

161.  Requisitions  and  Contributions  in  land  wars— Will  they  be 
resorted  to  in  maritime  wars?  (Hall,  425-435  ;  Halleck, 
I.,  265,  II.,  109-119  ;  Calvo,  §§  2231-2255  ;  Bluntschli, 
Arts.  653-656  ;  Woolsey,  220  ;  Edwards,  "  The  Germans 
m  France";  Sherman's  "Memoirs,"  II.,  175,  181-184, 
207,  227.) 

162.  The  Bombardment  of  Towns.     (Hall,  534,  535.) 

163.  Military  Occupation— The  general  character  of  the  Right 
and  Jurisdiction  of  an  Invader  over  the  territory  occupied 
by  his  armies— Old  Theories— Modern  View.  (Hall,  462- 
469;  Halleck,  II.,  444-449;  Bluntschli,  Arts.  539-541; 
Calvo,  §§  2166-2198  ;  Woolsey,  252  ;  Creasey,  502-512.) 

164.  Relation  of  the  territory  occupied  to  the  Government  of  the 
Invader— To  that  of  the  State  invaded.  (1.  United  States  v. 
Rice,  Cases  and  Op.,  364;  2.  Fleming  v.  Page,  lb.,  365  ; 
3.  Cross  v.  Harrison,  lb.,  371  ;  4.  Jecker  v.  Montgomery, 
lb.,  373  ;  5.  Case  of  Guerin,  lb.,  375  ;  6.  Case  of  Yillas- 
seque,  lb.,  380.  See  also:  Halleck,  II.,  449-461  ;  Hall, 
497.) 

165.  De  facto  and  Constructive  Occupation.— (Hall,  480-485  ; 
Halleck,  II.,  446-449  ;  Creasey,  503;  Walker,  344-346.) 

166.  Rights  of  the  Occupier  over  the  Persons  of  the  territory  oc* 
cupied-"  War  Rebel."  (Hall,  469-476  ;  Halleck,  IL.  464- 
468  ;  Creasey,  516  ;  Calvo,  §  2166  et  sec.) 


XXXvi  SYLLABUS. 

107.  Rights  of  the  invader  over  Incorporeal  Things,  as  Debts,  etc. 
(Occupation  of  Naples  (l-lt>5).  Cases  and  Op.,  SS-t.  See 
also  :  Hall  41^  ;  Halleck,  II.,  173-1:79  ;  Phillimore,  III., 
832-840.;) 

(h)     Tenniitation  of  War — Conquest — Cession. 

168.  What  marks  the  date  of  the  end  of  a  War?.— Treaties  of 
Peace— Proclamations  in  Civil  Wars.  (1.  The  Thetis,  Cases 
and  Op..  :^;iit :  -2.  The  Protector.  21).,  391.  See  also  :  Hall, 
557 ;  Heffter,  §  176  ;  Phillimore,  III.,  770  ;  Calvo, 
§§  3153-3154.) 

169.  Effect  of  Treaties  of  Peace  in  settling  general  rights  and 
obligations  of  the  parties— Effect  upon  acts  done  before  the 
war— Upon  acts  done  during  the  war— Upon  acts  done 
subsequently  to  the  treaty  of  peace.  (Hall,  557-565  ; 
Phillimore.  III.,  770-784  ;  Hefifter,  §§  179-183  ;  Woolsey, 
203-206 ;  Calvo,  §§  3155-3159.  Cases :  The  Mentor, 
Cases  and  Op.,  385  ;  2.  The  Nymph,  lb.,  386;  3.  The  Sivine- 
herd,  lb.,  388.) 

17<'.  Postliminium— Uti  possidetis— How  do  they  apply  to  terri- 
tory? (Hall,  486,  568  ;  Halleck,  II.,  512-522  ;  Phillimore, 
III.,  010-618  ;  Woolsey,  248-252  ;  Heffter,  §§  187-191; 
Bluntschli,  Arts.  515,  727-741  ;  Calvo,  §§  3150,  3169 
et  seq.) 

171.  Conquest— Cession  (The  Elector  of  Hesse  Cassel,  Cases 
and  Op.,  3sl  ;  2.  U.  S.  v.  Moreno,  lb.,  375  ;  Am.  Ins. 
Co.  V.  Canter,  lb.,  372.  And  see  :  Hall,  565-573  ;  Hal- 
leck, II.,  480  et  seq.;  Heffter,  §  133;  Dana's  Note  to 
Wheaton.  No.  169  ;  Calvo,  §§  2453-2490.) 

III.  Relations  between  Belligerents  and  Neutrals. 

(o)  A  General  Vieiu  of  the  Relations  between  Belligerents  and 

Neutrals. 

17l'.  Historical  Sketch  of  the  Subject,  i  Hall,  576-594;  Halleck, 
II.,  173  et  seq.;  Woolsey,  266-273  ;  Wheaton  (D),  §§  412- 
425  :  Creasey,  470-1:82  ;  Heffter,   §§  145-148  ;  Phillimore, 


SYLLABUS.  XXXVU 

{b)   Neutral  Duties. 

173.  Neutrals  are  not  to  permit  their  Territory  to  be  used  for 
hostile  purposes  by  either  belligerent-— Transit  of  troops- 
Fitting  out  hostile  expeditions— Capture  of  vessels  in  neutral 
waters.  (1.  The  Amia,  Cases  and  Op.,  2!)3  ;  '1.  The  General 
Annstroiuj,  lb.,  396  ;  3.  The  Perle,  lb.,  31)8  ;  4.  The 
Ann,  lb.,  400;  Other  cases,  lb.,  ¥^\,  note.  See  also: 
Hall,  495-612  ;  Halleck,  II.,  173-181  ;  Philliraore,  III., 
225-236;  Heffter,  §§  146-147;  Calvo,  §  2615  et  seq.; 
Bluntschli,  Art.  7"49  et  seq.) 

174.  Equipment  of  vessels  of  war  in  neutral  territory.  (1.  U.  S. 
Neutrality  Acts,  Cases  and  Op.,  402  ;  2.  British  Foreign 
Enlistment  Acts,  lb.,  403  ;  3.  La  Amistad  de  Rues,  lb., 
406  ;  4.  The  Santissima  Trinidad,  lb.,  408  ;  5.  U.  S.  v. 
Quincy,  lb.,  412;  6.  The  Meteor,  lb.,  418;  7.  The  Ter- 
ceira  Affair,  lb.,  421  ;  8.  The  Alabama,  425  ;  9.  The 
Florida,  lb.,  428  ;  10.  The  Slienandoah,  lb.,  429  ;  11. 
The  Georgia,  lb.,  429  ;  12.  The  Sumpter,  etc.,  lb.,  430; 
13.  The  Geneva  Award,  lb.,  431.  See  also  :  Hall,  612- 
620  ;  Halleck,  II.,  184-195  ;  Dana's  Note  to  Wheaton, 
No.  215  ;  Walker,  458-502  ;  Phillimore,  III.,  236  et  seq.) 

175.  Loans  of  Money  to  Belligerents.  (Hall,  597-599  ;  Blunt- 
schK,  Art.  768  ;  Halleck,  II.,  195  ;  Phillimore,  III.,  247.) 

176.  Sale  of  Munitions  of  War  by  a  Neutral  State.  (Sale  of 
Arms  to  France,  Cases  and  Op.,  459  ;  Hall,  599.) 

177.  Aid  to  Insurgents— Loans— Munitions  of  "War.  (1.  De  Wiitz 
V.  Hendricks,  Cases  and  Op.,  438  ;  2.  Thompson  v. 
Powles,  lb.,  440  ;  3.  Kennett  v.  Chambers,  lb.,  441  ;  4. 
U.  S.  V.  TrmnbuU,  lb.,  443  ;  5.  The  Salvador,  lb.,  455. 
And  see  :  Phillimore,  III.,  247-250). 

(c)  Contraband  of  War. 

178.  General  Law  of  Contraband.  (Hall,  644  ;  Halleck,  IL,  244  ; 
Woolsey,  318  ;  Phillimore,  III.,' 338  ;  Wheaton  (D),  §  476 
et  seq.) 

179.  It  was  formerly  the  custom  to  declare  by  proclamation  at  the 


XXXviii  SYLLABUS. 

beginning  of  a  war  what  articles  would  be  considered 
Contraband.  (^Proclamation  of  Charles  I.,  Cases  and  Up., 
4G2.) 

150.  Classification   of    Contraband  —  Res    ancipitis    usus  —  Occa- 
sional contraband.    (1.  The  Peterhoff,  Cases  and  Op.,  465 
2.  The  Commercen,  lb.,  470  ;    3.    //   Volanfe,    lb.,  472 
4.  Other  cases,  lb.,  471,  note.     And   see :  Hall,  (')5S-668 
Halleck,    II.,   251-264;    Heffter,    §    160;    Wheaton   (D), 
§§  477-500  ;  Davies,  340-350  ;  Woolsey,  321-329.) 

151.  Penalty  for  carrying  contraband  —  Time  when  penalty 
attaches— Rule  of  English  and  American  Courts — French 
Rvile.  (1.  The  Xeufralitef,  Cases  and  Op.,  474  ;  2.  Seton 
V.  Low,  lb.,  475  ;  3.  Ex j^cirte  Chavasse,  lb.,  476.) 

152.  Dispatches  and  Persons  as  Contraband.  (1.  The  jLtalcinta, 
Cases  and  Op.,  477;  2.  The  Rapid,  lb.,  4:S0  ;  ^.  The 
Madison,  lb.,  482  ;  4.  The  Orozembo,  lb.,  483  :  5.  The 
Trent,  lb.,  486.  And  see  :  Hall,  675-686  ;  Halleck,  II., 
324,  note  ;  Woolsey,  335-339  ;  Heffter,  §  161  a.) 

(d)    Blockade. 

183.  The  purpose  of  Blockade— What  is  an  effective  Blockade — 
Notification— De  facto  Blockade.  (1.  The  Nejjtuu  us,  Cases 
and  Op.,  490  ;  2.  The  Betsy,  lb.,  492  ;  3.  The  Nancy,  lb., 
494  ;  4,  The  Ocean,  lb.,  495  ;  5.  Other  cases,  i7).,496,  note. 
See  :  Hall,  696-714;  Halleck,  II.,  211-225;  Woolsey, 
342-350  ;  Heffter,  §§154-156  ;  Wheaton  (D),   §§  511-520.) 

l'^4.  Penalty  for  Breach  of  Blockade— When  does  the  penalty 
attach  ?— French  Rule.  (The  Helen,  Cases  and  Op.,  497. 
And  Hall,  715  ;  Woolsey,  350-351.) 

(e)     Ride  of  the  War  of  1756. 

185.  Neutrals  may  not  engage  in  a  trade  during  war,  from  which 
they  were  excluded  in  time  of  peace.  (1.  The  Ininianuel, 
Cases  and  Op.,  5(i2  ;  2.  The  Emanuel,  lb.,  504.  See  also  ; 
Hall,  6,39-642;  Halleck,  II.,  3.30-339  ;  Woolsey,  3.39-342  ; 
Bluntschli,  Art.  800,  r.  ;  Phillimore,  III.,  370-386.) 


SYLLABUS.  XXXix 

(/)     Continuous  Voyages. 

186.  Colonial  Trade,  and  Coasting  Trade— Extension  in  1793. 
(1.  The  William,  Cases  and  Op.,  505;  Hall,  672; 
Woolsey,  355  ;  Pliillimore,  III.,  388.) 

187.  Applied  to  the  Carriage  of  Contraband,  and  the  breach  of 
blockade  by  American  Courts.  (The  Sfephen  Hart,  Cases 
and  Op.,  500.  See  also  :  Hall,  673  ;  Walker,  514,  515, 
525  ;  PhilHmore,  HI.,  301-403.  Extract  from  the  Ber- 
muda, pp.  391-395,  from  the  PeterJwff,  pp.  395-396,  from 
Hobhs  V.  Hemning,  pp.  397-403  ;  Bluntschli,  Art.  835,  r. 
5  ;  Calvo,  §§  2762-2766.) 

{g)    The  Bight  of  Search  and  Captiire. 

188.  The  Right  of  Visit  and  Search  is  a  belligerent  right,  to 
which  Neutrals  are  subject— And  resistance  in  any  manner 
to  this  right  entails  condemnation.  (The  Maria,  Cases 
and  Op.,  515.  And  see  :  Hall,  725-731  ;  Halleck,  II.,  267, 
268,  283-296  ;  Phillimore,  III.,  522,  544,  550  ;  Woolsey, 
358,  361  ;  Calvo,  §§  2939-3003,  as  to  whole  subject  of 
Visit  and  Search  ;  Wheaton  (D),  §§  525-528  ;  Heffter, 
§§  167-170.) 

189.  Formalities  of  the  Exercise  of  the  Right  of  Search- 
Grounds  of  Capture — False  Documents— Spoliation  of  Papers. 
(Hall,  732-741  ;    Halleck,    II.,  297-299  ;  Phillimore,  III., 

536.) 

190.  The  Right  of  Visit  and  Search  in  time  of  peace- Impress- 
ment of  Seamen — Slave  Trade — Protection  of  Seals — Piracy. 
(Halleck,  II.,  268-282  ;  Phillimore,  III.,  525-529.  And 
see  the  case  of  Le  Louis,  Cases  and  Op.,  §  21  c,  and  p. 
518,  note  ;  Woolsey,  365-386  ;  The  Behring  Sea  Arbitra- 
tion, Cases  and  Op.,  521.) 

191.  The  Right  to  capture  Enemy's  goods  in  Neutral  vessels, 
and  Neutral  goods  in  Enemy's  vessels—"  Free  ships,  free 
goods  "—Declaration  of  Paris.     (Hall,  687-695,  717-723.) 

{h)  Prize  Courts. 

192.  The   Constitution   of  Prize    Courts    in    different  Countries. 


Xl  SYLLABUS. 

r 

(Phillimore,   III.,    65S-005  ;    Lawrence's  AVheaton,    960- 
97(3.) 

193.  The  Principles  and  Practice  of  Prize  Courts.  (Phillimore, 
III.,  (iOt*,-(;7li.) 

194.  Decisions  of  Prize  Courts— They  are  courts  of  the  captors' 
country.  (Decisions  of  Prize  Courts,  Cases  and  Op., 
518.) 

195.  Prize  Courts  on  board  ships— Practice  of  Captain  Semmes,  ot 
the  Alabama,   (^Cases  and  Op.,  519.) 


CASES  AND  OPINIONS 


ox 


INTERNATI(3NAL  LAW. 


INTRODUCTION. 


Section  1. — International  Law  is  a  part  of  the  Municipal  Laav 

OF  States, 


OPINION  OF  BLACKSTONE. 

{Blackstone' s  Coiiimoitariea,  Book,  IV.  Chap.  IV.) 

TriE  law  of  nations  is  a  system  of  rules,  deducible  by  natural 
reason,  and  established  by  universal  consent  among  the  civilized 
inhabitants  of  the  world ;  in  order  to  decide  all  disputes,  to  regulate 
all  ceremonies  and  civilities,  and  to  insure  the  observance  of  justice 
and  good  faith,  in  that  intercourse  which  must  frequently  occur 
between  two  or  more "  independent  states,  and  the  individuals  be- 
longing to  each. 

This  general  law  is  founded  upon  this  principle,  that  different 
nations  ought  in  time  of  peace  to  do  one  another  all  the  good  they 
can,  and  in  time  of  war  as  little  harm  as  possible,  without  prej- 
udice to  their  own  real  interests.  And,  as  none  of  these  states 
will  allow  a  superiority  in  the  other,  therefore  neither  can  dictate 
or  prescribe  the  rules  of  this  law  to  the  rest ;  -.but  such  rules  must 
necessarily  result  from  those  principles  of  natural  justice,  in  which 
all  the  learned  of  every  nation  agree  ;  or  they  depend  upon  mutual 
compacts  or  treaties  between  the  respective  communities  ;  in  the 
construction  of  which  there  is  also  no  judge  to  resort  to,  but  the 
law  of  nature  and  reason,  being  the  only  one  in  which  all  the  con- 


2  INTRODUCTION. 

tract in!^  parties  are  equally  conversant,  and  to  which  they  are 
equally  subject. 

In  arbitrary  states  this  law,  wherever  it  contradicts  or  is  not  pro- 
vided for  by  the  municipal  law  of  the  country,  is  enforced  by  the 
royal  power ;  but  since  in  England  no  royal  power  can  introduce  a 
new  law,  or  suspend  the  execution  of  the  old,  therefore  the  law  of 
nations  (wherever  any  question  arises  which  is  properly  the  object 
of  its  jurisdiction)  is  here  adopted  in  its  full  extent  b}'^  the  common 
law,  and  is  held  to  be  a  part  of  the  law  of  the  land.  And  those  acts 
of  parliament,  which  have  from  time  to  time  been  made  to  enforce 
this  universal  law,  or  to  facilitate  the  exesution  of  its  decisions,  are 
not  to  be  considered  as  introductive  of  any  new  rule,  but  merely  as 
declaratory  of  the  old  fundamental  constitutions  of  the  kingdom ; 
without  which  it  must  cease  to  be  a  part  of  the  civilized  world. 
Thus  in  mercantile  questions,  such  as  bills  of  exchange  and  the  like ;  in 
all  marine  causes,  relating  to  freight,  average,  demuri-age,  insurances, 
bottomry,  and  others  of  a  similar  nature ;  the  law  merchant,  which 
is  a  branch  of  the  law  of  nations,  is  regularly  and  constantly  adhered 
to.  So  too  in  all  disputes  relating  to  prizes,  to  shipwrecks,  to  hos- 
tages, and  ransom  bills,  there  is  no  other  rule  of  decision  but  this 
great  universal  law,  collected  froai  history  and  usage,  and  such 
writers  of  all  nations  and  languages  as  are  generally  approved  and 
allowed  of. 

But,  though  in  civil  transactions  and  questions  of  property  between 
the  subjects  of  different  states,  the  law  of  nations  has  much  scope 
and  extent,  as  adopted  by  the  law  of  England ;  yet  the  present 
branch  of  our  inquiries  will  fall  within  a  narrow  compass,  as  offenses 
against  the  law  of  nations  can  rarely  be  the  object  of  the  criminal 
law  of  any  particular  state.  For  offenses  against  this  law  are  prin- 
cipally incident  to  whole  states  or  nations  ;  in  which  case  recourse 
can  only  be  had  to  war ;  which  is  an  appeal  to  the  God  of  hosts,  to 
punish  such  infractions  of  public  faith  as  are  committed  by  one 
independent  people  against  another:  neither  state  having  any 
superior  jurisdiction  to  resort  to  upon  earth  for  justice.  But  where 
the  individuals  of  any  state  violate  this  general  law,  it  is  then  the 
interest  as  well  as  duty  of  the  government,  under  which  they 
live,  to  animadvert  upon  them  with  a  becoming  severity,  thp.t  the 
peace  of  the  world  may  be  maintained, 

I-'or  in  vain  would  nations  in  their  collective  capacity  observe 
these  universal  rules,  if  private  subjects  were  at  liberty  to  break 
them  at  their  own  discretion,  and  involve  the  two  states  in  a  war. 
It  is  therefore  incumbent  upon  the  nation  injured,  first  to  demand 
satisfaction  and  justice  to  be  done  on  the  offender,  by  the  state  to 


INTEODUCTION.  3 

which  he  belongs ;  and,  if  that  be  refused  or  neglected,  the  sovereign 
then  avows  himself  an  accomplice  or  abettor  of  his  subject's  crime, 
and  draws  upon  his  community  the  calamities  of  foreign  war. 


THE  SCOTIA. 

SUPEEJ^LE  COUKT  OF  THE  UxiTED  StATES,  1871. 

(14  Wallace,  170.) 
Discussion  of  General  Principles. 

Judgment  by  Strong,  J. : — 

*  *  *  "  Undoubtedly,  no  single  nation  can  change  the  law  of  the 
sea.  That  law  is  of  universal  obligation,  and  no  statute  of  one  or 
two  nations  can  create  obligations  for  the  world.  Like  all  the  laws 
of  nations,  it  rests  upon  the  common  consent  of  civilized  commu- 
nities. It  is  of  force,  not  because  it  was  prescribed  by  any  superior 
power,  but  because  it  has  been  generally  accepted  as  a  rule  of  con- 
duct. Whatever  may  have  been  its  origin,  whether  in  the  usages 
of  navigation  or  in  the  ordinances  of  maritime  states,  or  in  both,  it 
has  become  the  law  of  the  sea  only  by  the  concurrent  sanction  of 
those  nations  who  may  be  said  to  constitute  the  commercial  world. 
Many  of  the  usages  which  prevail,  and  which  have  the  force  of  law, 
doubtless  originated  in  the  positive  prescriptions  of  some  single 
state,  which  were  at  first  of  limited  effect,  but  which  when  gener- 
ally accepted  became  of  universal  obligation.  The  Rhodian  law  is 
supposed  to  have  been  the  first  system  of  marine  rules.  It  was 
a  code  for  Rhodians  only,  but  it  soon  became  of  general  authority 
because  accepted  and  assented  to  as  a  wise  and  desirable  system 
by  other  maritime  nations.  The  same  may  be  said  of  the  Amal- 
phitan  Table,  of  the  ordinances  of  the  Hanseatic  League,  and  of 
parts  of  the  marine  ordinances  of  Louis  XIV.  They  all  became 
the  law  of  the  sea,  not  on  account  of  their  origin,  but  by  reason  of 
their  acceptance  as  such.  And  it  is  evident  that  unless  general 
assent  is  efficacious  to  give  sanction  to  international  law,  there 
never  can  be  that  growth  and  development  of  maritime  rules 
which  the  constant  changes  in  the  instruments  and  necessities  of 
navigation  require.  Changes  in  nautical  rules  have  taken  place. 
How  have  they  been  accomplished,  if  not  by  the  concurrent  assent, 
expressed  or  understood,  of  maritime  nations  ? 

When,  therefore,  we  find  such  rules  of  navigation  as  are  men- 
tioned in  the  British  orders  in  council  of  January  9th,  1863,  and  in 


4  INTKODUCTION. 

our  act  of  Congress  of  1864,  accepted  as  obligatory  rules  by  more 
than  thirty  of  the  principal  commercial  states  of  the  world,  includ- 
ing almost  all  which  have  any  shippmg  on  the  Atlantic  Ocean,  we 
are  constrained  to  regard  them  as  in  part  at  least,  and  so  far  as  re- 
lates to  these  vessels,  the  laws  of  the  sea,  and  as  having  been  the 
law  at  the  time  when  the  collision  of  which  the  libellants  com- 
plain took  place. 

This  is  not  giving  to  the  statutes  of  any  nation  extra-territorial 
effect.  It  is  not  treating  them  as  general  maritime  laAvs,  but  it  is 
recognition  of  the  historical  fact  that  by  common  consent  of  man- 
kind these  rules  have  been  acquiesced  in  as  of  general  obligation. 
Of  that  fact  we  think  we  may  take  judicial  notice.  Foreign  muni- 
cipal laws  must,  indeed,  be  proved  as  facts,  but  it  is  not  so  with  the 
law  of  nations."  ^ 


1  In  the  case  of  the  Charming  Betsy,  2  Cranch,  64,  118,  Marshall,  C.  J.,  said: 
'•  It  has  also  been  observed  that  an  act  of  Congress  ought  never  to  be  construed 
to  violate  the  law  of  nations  if  any  other  possible  construction  remains,  and,  con- 
sequently, can  never  be  construed  to  violate  neutral  rights,  or  to  affect  neutral 
commerce  further  than  is  warranted  by  the  law  of  nations  as  understood  in  this 
country." 

In  the  case  of  the  Nereid,  9  Cranch,  388,  42-3,  the  same  judge  said:  "  Till  such 
an  act  [of  Congress]  be  passed,  the  court  is  bound  by  the  law  of  nations,  which  is 
a  part  of  the  law  of  the  land."  See  also  Talbot  v.  Seeman,  1  Cranch,  1,  43,  and  14 
Wallace  170,  188. 

In  the  case  of  Bentzon  v.  Boyle,  9  Cranch,  191,  198,  Marshall,  C.  J.,  said  ' 
"The  law  of  nations  is  the  great  source  from  which  we  derive  those  rules,  respect- 
ing belligerent  and  neutral  rights,  which  are  recognized  by  all  civilized  states 
throughout  Europe  and  America.  This  law  is  in  part  unwritten,  and  in  part 
conventional.  To  ascertain  that  which  is  unwritten,  we  resort  to  the  great  princi- 
ples of  reason  and  justice  ;  but,  as  these  principles  will  be  differently  understood 
by  different  nations  under  different  circumstances,  we  consider  them  as  being,  in 
some  degree,  fixed  and  rendered  stable  by  a  series  of  judicial  decisions.  The 
decisions  of  the  courts  of  everj'  country,  so  far  as  they  are  founded  upon  the  law 
common  to  every  country,  will  be  received,  not  as  authority,  but  with  respect. 
The  decisions  of  tin  courts  of  every  country  show  how  the  law  of  nations,  in  the 
given  case,  is  understood  in  that  country,  and  will  be  considered  in  adopting  the 
rule  which  is  to  prevail  in  this." 

Bishop  says  (Criminal  Law,  7th  Ed.,  I.  CO):  "Doubtless  if  the  legislature,  by 
words  admitting  of  no  interpretation,  commands  a  court  to  violate  the  law  of  na- 
tions, the  judges  have  no  alternative  but  to  obey.  Yet  no  statutes  have  ever  been 
framed  in  form  thus  conclusive;  and  if  a  case  is  prima  facie  within  the  legislative 
words,  still  a  court  will  not  take  the  jurisdiction  should  the  law  of  nations  forbid." 
Again  (p.  fiO):  "  All  statutes  are  to  be  construed  in  connection  with  one  another, 
with  the  common  law.  with  the  constitution,  and  with  the  law  of  nations." 


PART  I 

INTERNATIONAL  RELATIONS  IN  TIME  OF  PEACE. 


CHAPTER  I. 

ST  ATES— TERRITORIAL  RIGHTS. 


Section  2. — Definition  and  Ciiakacter  of  Sovereign  States. 


HALLECK'S  INTERNATIONAL  LAW,  I.  58. 

"  A  State  is  a  body  politic,  or  society  of  men  united  togetlier  for 
xnutual  advantage  and  safety.  Sucli  a  society  lias  affairs  and  interests 
[peculiar  to  itself,  and  is  capable  of  deliberation  and  resolution  ;  it  is 
therefore  regarded  as  a  kind  of  moral  person,  possessing  a  will  and 
an  understanding,  and  susceptible  of  rights  and  obligations.  From 
the  nature  and  design  of  such  a  society,  it  is  necessary  that  there 
should  be  established  in  it  a  lyiMic  authority,  to  order  and  direct 
what  is  to  be  done  by  each  individual  in  relation  to  the  end  and 
object  of  the  association.  This  political  autliority,  whether  vested 
in  a  single  individual  or  in  a  number  of  individuals,  is  properly 
the  sovereignty  of  the  State. 

"This  term,  however,  in  international  law,  is  usually  employed  to 
express  the  external  rather  than  the  internal  character  of  a  nation, 
with  respect  to  its  ability  or  capacity  to  govern  itself,  indepen- 
dently of  foreign  powers.  A  sovereign  State  may,  therefore,  be  de- 
fined to  be  any  nation  or  people  organized  into  a  body  politic  and 
exercising  the  rights  of  self-government." 

5 


STATES.  [part   I. 


Section'  3. — Acquisitiox  of  Tkkkitoky. 


JOIIXSOX  V.  McIXTOSII. 

Sl'pkeme  Court  of  tiik  Uxiteu  States,  1828. 

(8  Wlieaton,  533.) 

Diseoverj'  gives  a  valid  title  to  territory  occujiieil  by  imcivilizeJ  peoples. 
The   right  of  the  North  American  Imliaus  to  the  lauds  which  they  possessed 
was  that  of  occupancy  merely. 

Judgment — M.viisii.vLL,  C.  J. — (Only  so  much  of  the  decision  is 
given  as  applies  to  discovery  :) 

"  The  plaintiffs  in  this  cause  claim  the  land,  m  their  declaration 
mentioned,  under  two  grants,  pui'i)orting  to  be  made,  the  fu'st  iii 
1773,  and  the  last  in  1775,  by  the  chiefs  of  certain  Indian  tribes, 
constituting  the  Illinois  and  the  Praukeshaw  nations  ;  and  the  ques- 
tion is,  whether  this  title  can  be  recognized  in  the  courts  of  the 
United  Stiites. 

"  The  facts,  as  stated  in  the  case  argued,  show  the  atithority  of  the 
chiefs  who  executed  this  conveyance  so  far  as  it  could  be  given  by 
their  own  people;  and  likewise  show,  that  the  particular  tribes  for 
whom  these  chiefs  acted  were  in  rightful  possession  of  the  land  they 
sold.  The  inquiry,  therefore,  is,  in  a  great  measure,  confined  to  the 
power  of  Indians  to  give,  and  of  private  individuals  to  receive,  a 
title  which  can  be  sustained  in  the  courts  of  this  country. 

"  As  the  rights  of  society,  to  prescribe  those  rules  by  Avhich  prop- 
erty may  be  acquired  and  preserved  is  not,  and  cannot  be,  drawn 
into  question ;  as  the  title  to  lands,  especially,  is  and  must  be 
admitted  to  depend  entirely  upon  the  law  of  the  nation  in  Avhich 
they  lie,  it  will  be  necessary,  in  pursuing  this  inquiry,  to  examine, 
not  singly  those  principles  of  abstract  justice,  which  the  Creator 
of  all  things  has  impressed  on  the  mind  of  His  creature  man,  and 
which  are  admitted  to  regulate,  in  a  great  degree,  the  rights  of 
civilized  nations,  whose  perfect  independence  is  acknowledged  ;  but 
those  princii)les  also  which  our  own  government  has  adopted  in  the 
[larticular  case,  and  given  us  as  the  rule  for  our  decision. 

"On  the  discovery  of  this  immense  continent  the  nations  of 
P2in-ope  were  eager  to  appropriate  to  themselves  so  much  of  it  as 
they  could  respectively  acquire.  Its  vast  extent  offei-ed  an  amjile 
field  to  the  ambition  and  enterprise  of  all ;  and  the  character  and 


(Jll-Vr.  I.]  JOHNSON    V.  MCINTOSH.  7 

religion  of  its  inhcabitants  afforded  an  apology  for  considering  them 
as  a  people  over  whom  the  superior  genius  of  Europe  might  claim 
an  ascendency.  The  potentates  of  the  old  world  found  no  difficulty 
in  convincing  themselves  that  they  made  ample  compensation  to 
the  inhabitants  of  the  new,  by  bestowing  on  tliem  civilization  and 
Christianity,  in  exchange  for  unlimited  independence.  But,  as  they 
were  all  in  pursuit  of  nearly  the  same  object,  it  was  necessary,  in 
order  to  avoid  conflicting  settlements,  and  conseciuent  war  with 
each  other,  to  establish  a  principle  which  all  should  acknowledge  as 
the  law  by  which  the  rights  of  acquisition,  which  they  all  asserted, 
should  be  regulated  as  between  themselves.  This  principle  was,  that 
discovery  gave  title  to  the  government  by  whose  subjects,  or  by 
whose  authority,  it  was  made,  against  all  other  European  govern- 
ments, whicli  title  might  be  consummated  by  possession. 

"  The  exclusion  of  all  other  Europeans  necessarily  gave  to  the 
nation  making  the  discovery  the  sole  right  of  acquiring  the  soil 
from  tlie  natives,  and  establishing  settlements  upon  it.  It  was  a 
right  with  which  no  Europeans  could  interfere. 

"  It  was  a  right  wliich  all  asserted  for  themselves,  and  to  the 
assertion  of  which,  by  others,  all  assented. 

"  Those  relations  which  were  to  exist  between  the  discoverer  and 
the  natives  were  to  be  regulated  by  themselves.  The  rights  thus 
acquired  being  exclusive,  no  other  power  could  interpose  between 
them. 

"  On  the  establishment  of  these  relations,  the  rights  of  the  original 
inhabitants  were,  in  no  instance,  entirely  disregarded,  but  were 
necessarily,  to  a  considerable  extent,  impaired.  They  were  admitted 
to  be  the  rightful  occupants  of  the  soil,  with  a  legal  as  well  as  just 
claim  to  retain  possession  of  it,  and  to  use  it  according  to  their  own 
discretion;  but  their  rights  to  complete  sovereignty,  as  indepen- 
dent nations,  were  necessarily  diminished  and  their  power  to  dispose 
of  the  soil  at  their  own  will,  to  whomsoever  they  pleased,  was 
denied  by  the  original  fundamental  principle,  that  discovery  gave 
exclusive  title  to  those  who  made  it. 

"  "While  the  different  nations  of  Europe  respected  the  right  of  the 
natives,  as  occupants,  tliey  asserted  the  ultimate  dominion  to  be  in 
themselves;  and  claimed  and  exercised,  as  a  consequence  of  this 
ultimate  dominion,  a  power  to  grant  the  soil,  while  yet  in  posses- 
sion of  the  natives.  These  grants  have  been  understood  by  all  to 
convey  a  title  to  the  grantees,  subject  only  to  the  Indian  right  of 
occupancy. 

"  The  history  of  America,  from  its  discoveiy  to  the  present  day, 
proves,  we  think,  the  universal  recognition  of  these  principles. 


8  STATES.  [PAP.T    I. 

"  Spain  did  not  rest  her  title  solel}^  on  the  grant  of  the  Pope.  Her 
discussions  respecting  boundary,  with  France,  with  Great  Britain, 
and  with  the  United  States,  all  show  that  she  placed  it  on  the  rights 
given  by  discovery.  Portugal  sustained  her  claim  to  the  Brazils  by 
the  same  title. 

"  France,  also,  founded  her  title  to  the  vast  territories  she  claimed 
in  America  on  discovery.  However  conciliatory  her  conduct  to  the 
natives  may  have  been,  she  still  asserted  her  right  of  dominion  over 
a  great  extent  of  country  not  actually  settled  by  Frenchmen,  and 
her  exclusive  right  to  acquire  and  dispose  of  the  soil  which  remained 
in  the  occupation  of  Indians.  "^     *     * 

"The  States  of  Holland  also  made  acquisitions  in  America,  and 
sustained  their  right  on  the  connnon  principle  adopted  by  all 
Europe.  *     *    * 

"  Xo  one  of  the  powers  of  Europe  gave  its  full  assent  to  this 
principle  more  unequivocally  than  England.  The  documents  upon 
this  subject  are  ample  and  complete.  So  early  as  the  year  149G,  her 
monarch  granted  a  commission  to  the  Cabots,  to  discover  countries 
then  unknown  to  Chnstian  people,  and  to  take  possession  of  them 
in  the  name  of  the  king  of  England.  Two  years  afterwards,  Cabot 
proceeded  on  this  voyage,  and  discovered  the  continent  of  Xorth 
America,  along  which  he  sailed  as  far  south  as  Virginia.  To  this 
discovery  the  English  trace  their  title. 

"  In  this  first  effort  made  by  the  English  government  to  acquire 
territory  on  the  continent,  we  perceive  a  complete  recognition  of  the 
principle  which  has  been  mentioned.  The  right  of  discovery  given 
by  this  commission  is  confined  to  countries  '  then  unknown  to  all 
Christian  people ; '  and  of  these  countries  Cabot  was  empowered  to 
take  possession  in  the  name  of  the  king  of  England,  thus  asserting 
a  right  to  take  possession  notwithstanding  the  occupancy  of  the 
natives,  who  were  heathen,  and,  at  the  same  time,  admitting  any 
prior  title  of  any  Christian  people  who  may  have  made  a  previous 
discovery.  *    *     * 

"  Thus,  all  nations  of  Europe,  who  have  acquired  territory  on  this 
continent,  have  asserted  in  themselves  and  have  recognized  in  others, 
the  exclusive  right  of  the  discoverer  to  appropriate  the  lands  occu- 
pied by  the  Indians.  *    *     * 

"  The  [)i)wer  now  possessed  by  the  government  of  the  United  States 
to  grant  lands,  resided,  while  we  were  colonies,  in  the  crown,  or  its 
grantees. 

"The  validity  of  the  titles  given  by  either  has  never  been  questioned 
ill  our  courts.  It  has  been  exei-cised  uniformly  over  territory  in 
possession  of  the  Indians.     The  existence  of  this  power  must  negative 


CHAP.  I.]  THE  OREGON  TERRITOKY.  9 

the  existence  of  any  rig-lit  which  may  conflict  with,  and  coniidl  it. 
An  absolute  title  to  lands  cannot  exist,  at  the  same  time,  in  ditt'ercnt 
persons,  or  in  different  governments. 

"  An  absolute,  must  be  an  exclusive  title,  or  at  least  a  title  which 
excludes  all  others  not  compatible  with  it.  All  our  institutions  recog- 
nize the  absolute  title  of  the  crown,  subject  only  to  the  Indian  right 
of  occupancy,  and  recognize  the  absolute  title  of  the  crown  to  ex- 
tinguish that  right.  This  is  incompatible  with  an  absolute  and 
complete  title  in  the  Indians." 


THE  OREGON  TERRITORY. 

(Wlieaton'' s  Internatiomd  Law,  Zd.  Ed.  p.  220.) 

The  claim  of  the  United  States  to  the  territory  between  the  Rocky 
Mountains  and  the  Pacific  Ocean,  and  between  the  42d  degree  and 
5-4th  degree  and  40  minutes  of  north  latitude,  is  rested  by  them 
upon  the  following  grounds : — 

1.  The  first  discovery  of  the  mouth  of  the  river  Columbia  by 
Captain  Gray,  of  Boston,  in  1792  :  the  first  discovery  of  the  sources 
of  that  river,  and  the  exploration  of  its  course  to  the  sea  by  Cap- 
tains Lewis  and  Clark,  in  1805-G ;  and  the  establishment  of  the 
first  posts  and  settlements  in  the  territory  in  question  by  citizens 
of  the  United  States. 

2.  The  virtual  recognition  by  the  British  government  of  the 
title  of  the  United  States  in  the  restitution  of  the  settlement  of 
Astoria  or  Fort  George,  at  the  mouth  of  the  Columbia  River,  which 
had  been  captured  by  the  British  during  the  late  war  between  the 
two  countries,  and  which  was  restored  in  virtue  of  the  1st  article  of 
the  treaty  of  Ghent,  1814,  stipulating  that  "  all  territory,  places,  and 
possessions  whatever,  taken  by  either  party  from  the  other  during 
the  war,"  etc.,  "shall  be  restored  without  delay."  This  restitution 
was  made  without  any  reservation  or  exception  whatsoever,  com- 
municated at  tlie  time  to  the  American  government. 

3.  The  accpiisition  by  the  United  States  of  all  the  titles  of 
Spain,  Avhich  titles  were  derived  from  the  discovery  of  the  coasts 
of  the  region  in  question,  by  Spanish  subjects,  before  they  had 
been  seen  by  the  people  of  any  other  civilized  nation.  By  the 
3d  article  of  the  treaty  of  1819,  between  the  United  States  and 
Spain,  the  boundary  line  between  the  two  countries,  west  of  the 
Mississippi,  was  established  from  the  mouth  of  the  river  Sabine,  to 


10  STATES.  [part  I. 

certain  i:>oints  on  the  Tied  River  and  the  Arkansas,  and  running 
alonj;  the  parallel  of  4*2  degrees  north  to  the  South  Sea ;  His  Cath- 
olic Majesty  cedhig  to  the  United  States  "  all  liis  rights,  claims, 
and  pretensions,  to  any  territories  east  and  north  of  the  said  line ; 
and  "  renouncing  "  for  himself,  his  heirs  and  successors,  all  claim  to 
the  said  territories  forever."  The  boundary  thus  agreed  on  with 
Spain  was  confirmed  by  the  treaty  of  18"28,  between  the  United 
States  and  Mexico,  which  had,  in  the  meantime,  become  indepen- 
dent of  Spain. 

4.  Upon  the  ground  of  contl(/uit^,  which  should  give  to  the  United 
States  a  stronger  right  to  those  territories  than  could  be  advanced 
by  any  other  power.  "  If,"  said  ."Mr.  Gallatin,  "a  few  trading  fac- 
tories on  the  shores  of  Hudson's  Bay  have  been  considered  by  Great 
Britain  as  giving  an  exclusive  right  of  occupancy  as  far  as  the 
Ivocky  Mountains ;  if  the  infant  settlements  on  the  more  southern 
Atlantic  shores  justified  a  claim  thence  to  the  South  Seas,  and 
which  was  actually  enforced  to  the  Mississippi ;  that  of  the  millions 
of  American  citizens  already  within  reach  of  those  seas  cannot  con- 
sistently be  rejected.  It  will  not  be  denied  that  the  extent  of  con- 
tiguous country  to  which  an  actual  settlement  gives  a  prior  right, 
must  depend,  in  a  considerable  degree,  on  the  magnitude  and  2)op- 
ulalion  of  that  settlement,  and  on  the  facility  with  which  the  vacant 
adjacent  land  may,  within  a  short  time,  be  occupied,  settled,  and 
cultivated  by  such  population,  compared  with  the  probability  of  its 
being  occupied  and  settled  from  any  other  quarter.  This  doctrine 
was  admitted  to  its  fullest  extent  by  Great  Britain,  as  appeared  by 
all  her  charters,  extending  from  the  Atlantic  to  the  Pacific,  given  to 
colonies  established  then  only  on  the  borders  of  the  Atlantic.  How 
much  more  natural  and  stronger  the  claim,  when  made  by  a  nation 
whose  population  extended  to  the  central  parts  of  the  continent,  and 
whose  dominions  were  by  all  acknowledged  to  extend  to  the  Rocky 
Mountains." 

The  exclusive  claim  of  the  United  States  is  opposed  by  Great 
Britain  on  the  following  grounds  : — 

1.  That  the  Columbia  was  not  discovered  by  Gray,  who  had  only 
entered  its  mouth,  discovered  four  years  previously  liy  Lieutenant 
Meares  of  the  British  navy ;  and  that  the  exploration  of  the  interior 
borders  of  the  Columbia  by  Lewis  and  Clark  could  not  be  considered 
as  confirming  the  claim  of  the  L'nited  States,  becaiise,  if  not  before, 
at  least  in  the  same  and  subsequent  years,  the  British  Northwest 
Company  had,  by  means  of  their  agents,  already  established  their 
posts  on  the  head  waters  or  main  branch  of  the  river. 

li.  That  the  restitution  of  Astoria,  in  1818,  was  accompanied  by 


CriAP.  I.]  DELAGOA   BAY,  1872.  11 

express  reservations  of  the  claim  of  Great  Britain  to  tliat  territory, 
upon  AAiiich  the  American  settlement  must  be  considered  an  eu- 
croachnient. 

3.  That  the  titles  to  the  territory  in  question,  derived  by  the 
United  States  from  Spain  through  the  treaty  of  1819,  amounted  to 
nothing  more  than  the  rights  secured  to  Spain  equally  with  Great 
Britain  by  the  Nootka  Sound  Convention  of  1790  :  namely,  to  settle 
on  any  part  of  tliose  countries,  to  navigate  and  fish  in  their  waters, 
and  to  trade  with  the  natives. 

4.  That  the  charters  granted  by  British  sovereigns  to  colonies 
on  the  Atlantic  coasts  were  nothing  more  than  cessions  to  the 
grantees  of  whatever  rights  the  grantor  might  consider  himself  to 
possess,  and  could  not  be  considered  as  binding  the  subjects  of  any 
other  nation,  or  as  part  of  the  law  of  nations,  until  they  had  been 
confirmed  by  treaties. 


DELAGOA  BAY,  1872. 

(HalVs  International  Law.,  'id.  Ed.,  119.) 

"  A  SOMEWHAT  recent  controversy  to  which  title  by  occupation 
has  given  rise  turned  mainly  u[)on  the  effect  of  a  temporary  cessa- 
tion of  the  authority  of  the  occupying  state.  From  1823  to  1875, 
when  the  matter  was  settled  by  arbitration,  a  dispute  existed 
between  England  and  Portugal  as  to  some  territory  at  Delagoa  Bay, 
which  was  claimed  by  the  former  under  a  cession  by  native  chief;i 
in  the  first-mentioned  year,  and  by  the  latter  on  the  grounds, 
amongst  others,  of  continuous  occupation.  It  was  admitted  that 
Portuguese  territorj^  reached  to  the  northern  bank  of  the  Rio  de 
Espirito  Santo,  or  English  River,  which  flows  into  a  bay,  and  that 
a  port  and  village  had  long  been  established  there.  The  question 
was  whether  the  sovereignty  of  Portugal  extended  south  of  the 
river,  or  whether  the  lands  on  that  side  had  remained  in  the  pos- 
session of  their  original  owners.  England  relied  upon  the  facts  that 
the  natives  professed  to  be  independent  in  1823,  that  they  acted  as 
such,  and  that  the  commandant  of  the  fort  repudiated  the  possession 
of  authority  over  them.  In  the  memoi'ials  which  were  submitted 
on  behalf  of  Portugal,  amidst  much  Avhicli  had  no  special  reference 
to  the  territory  in  dispute,  there  was  enough  to  show  that  posts 
had  been  maintained  within  it  from  time  to  time,  and  that  authority 
had  probably  been  exercised  intermittently  over  the  natives.  The 
area  of  the  territory  being  small,  and  all  of  it  being  within  easy 


12  STATES.  [part   I. 

reach  of  a  force  in  possession  of  the  Portuguese  settlement,  there 
could  be  little  difficulty  in  keeping  up  sufficient  control  to  prevent  a 
title  by  occupation  from  dying  out.  There  was,  therefore,  a  pre- 
sumption in  favor  of  the  Portuguese  claim.  The  French  govern- 
ment, which  acted  as  arbitrator,  took  the  view  that  the  interrup- 
tion of  occupation,  which  undoubtedly  took  place  in  1823,  was  not 
sufficient  to  oust  a  title  supported  by  occasional  acts  of  sovereignty 
done  through  nearly  three  centuries,  and  adjudged  the  territory  in 
question  to  Portugal."  [The  award  in  favor  of  Portugal  was  in 
substance,  on  the  grounds  of  first  discovery,  in  the  16th  century,  and 
of  contmued  occupation  and  control  of  the  territory  in  dispute.] 


SANTA  LUCIA. 

(Phillimore' s  International  Law,  M  Ed.,  3G8.) 

"There  was  a  dispute  of  long  standing  between  France  and 
England  respecting  Santa  Lucia,  one  of  the  Antilles  Islands.  After 
the  treaty  of  Aix-la-Chapelle  (1748),  the  matter  was  referre<l  to  the 
decision  of  certain  commissioners,  and  it  was  the  sul)ject  of  various 
State  Papers  in  17.51  and  17.54. 

"  The  French  negotiators  maintained,  that  though  the  English 
had  established  themselves  in  1639,  they  had  been  driven  out  or 
massacred  by  the  Caribbees  in  1640,  and  they  had,  animo  et  facto  iKW^ 
sine  8pe  redeundi.,  abandoned  the  island;  that  Santa  Lucia  being 
vacant.,  the  French  had  seized  it  again  in  1650,  when  it  became  im- 
mediately, and  without  the  necessity  of  any  prescriptive  aid,  their 
property. 

"  The  English  negotiators  contended  that  their  dereliction  had 
been  the  result  of  violence,  that  they  had  not  abandoned  the  island 
nine  spe  redeundi.,  and  that  it  was  not  competent  to  France  to  profit 
by  this  act  of  violence,  and  surreptitiously  obtain  the  territory  of 
another  state  ;  and  that  by  such  a  proceeding  no  doyninium  cotild  ac- 
crue to  tliem.  The  principal  discussion  turned,  not  upon  the  nature 
of  the  conditions  of  prescriptive  acquisition,  but  upon  the  nature  of 
the  conditions  of  voluntary  dereliction,  by  whicli  the  rights  of  prop- 
erty were  lost,  and  the  possession  returned  to  the  class  of  vacant 
and  unowned  territories."  ^ 

1  At  the  prfsent  time  it  is  generally  concedetl  that  discovery  alone  is  not  enough 
to  give  title  to  territory  ;  it  must  be  followed  by  actual  occupation. 

la  regard  to  the  extent  of  the  interior  country  to  which  the  occupation  of  the 


CHAP.  I.]  ADAMS    TO  MONROE.  13 


Section  4. — Recogxitiox  of  Ixdepexdence. 


J.  Q.  ADAMS  TO  PRESIDENT  MONROE,  AUG.  24,  1818. 
(1  Wharton  s  Dirjetit,  121.) 

"  There  is  a  stage  in  such  (revolutionary)  contests  wlien  the 
party  struggling  for  independence  has,  as  I  conceive,  a  right  to 
demand  its  acknowledgment  by  neutral  parties,  and  when  the 
acknowledgment  may  be  granted  without  departure  from  the  obliga- 
tions of  neutrality.  It  is  the  stage  when  the  independence  is  estab- 
lished as  matter  of  fact,  so  as  to  leave  the  chance  of  the  opposite 
party  to  recover  their  dominion  utterly  desperate.  The  neutral 
nation  must,  of  course,  judge  for  itself  when  this  [)eriod  has  arrived  ; 
and  as  the  belligerent  nation  has  the  same  right  to  judge  for  itself, 
it  is  very  likely  to  judge  differently  from  the  neutral  and  to  make 
it  a  cause  or  pretext  for  war,  as  Great  Britain  did  expressly  against 
France  in  our  Revolution,  and  substantially  against  Plolland. 

"  If  war  thus  results,  in  point  of  fact,  from  the  measure  of  recog- 
nizing a  contested  independence,  the  moral  right  or  wrong  of  the 
war  depends  upon  the  justice  and  sincerity  and  prudence  with 
w^iich  the  recognizing  nation  took  the  step.  I  am  satisfied  that  the 
cause  of  the  South  Americans,  so  far  as  it  consists  in  the  assertion 
of  independence  against  Spain,  is  just.  But  the  justice  of  a  cause, 
however  it  may  enlist  individual  feelings  in  its  favor,  is  not  suf&cient 
to  justify  third  parties  in  siding  with  it.  The  fact  and  the  right 
com'i)ined  can  alone  authorize  a  neutral  to  acknowledge  a  new  and 
disputed  sovereignty."  ^ 

sea-coast  gives  title,  the  extravagant  claim  was  put  forward  in  some  of  the  earlier 
charters,  granting  lands  in  North  America,  that  such  right  extended  from  the 
Atlantic  to  the  Pacific  Ocean.  A  more  reasonable  rule  was  laid  down  by  the 
United  States  commissioners,  appointed  to  settle  the  boundary  of  Louisiana, 
namely,  "that  when  any  European  nation  takes  possession  of  any  extent  of  sea- 
coast,  that  possession  is  understood  as  extending  into  the  interior  country,  to  the 
sources  of  the  rivers  emptying  themselves  within  that  coast,  to  all  their  branches, 
and  the  country  they  cover,  and  to  give  it  a  right  in  exclusion  of  all  other  nations 
to  the  same.'' 

1  In  iVIhaine  v.  Coze's  Lessee,  4  Cranch,  212,  the  Supreme  Court  of  the  United 
States  say  :  "  That  the  several  states  which  composed  this  Union,  so  far  at  least  as 
regarded  their  municipal  regulations,  became  entitled,  from  the  time  when  they 


14  STATES.  [PAET   I. 


Section  5. — Bouxdaries. 


FOSTER  &  ELAM  v.  NEILSON. 

Supreme  Court  of  the  United  States,  1829. 
(2  Peters,  253.) 

This  was  the  case  of  lands  in  the  disputed  territory  between  the  rivers  Iberville 
and  Perdido  granted  to  the  plaintiffs  by  tlie  Spanish  governor.  The  defendant 
alleged  that  by  the  treaty  of  Ildefonso,  1800,  this  territory  was  ceded  by  Spain  to 
France,  and  in  1803,  by  France  to  the  United  States.  And  it  was  a  question  of  the 
interpretation  of  the  treaty  of  cession. 

The  court  refused  to  go  into  the  merits  of  the  treaty,  but  considered  itself  bound 
by  the  decision  of  the  i)olitical  department  of  the  government,  whose  province  it 
was  to  deal  with  foreign  relations. 

Extract  from  the  judgment,  Marshall,  C.  J. : — 

a*  *  *  jn  a  controversy  between  two  nations  concerning  national 
boundary,  it  is  scarcely  possible  that  the  courts  of  either  should 
refuse  to  abide  by  the  measures  adopted  by  its  own  government. 

"  There  being  no  common  tribunal  to  decide  between  them,  each 
determines  for  itself  on  its  own  rights,  and  if  they  cannot  adjust 
their  differences  i^eaceably,  the  right  remains  with  the  strongest. 
The  judiciary  is  not  that  department  of  the  government  to  which 
the  assertion  of  its  interests  against  foreign  powers  is  confided ;  and 
its  duty  commonly  is  to  decide  upon  hidividual  rights,  according  to 
those  principles  which  the  political  departments  of  the  nation  have 
established.  If  the  course  of  the  nation  has  been  a  YAain  one,  its 
courts  would  hesitate  to  pronounce  it  erroneous. 

declared  themselves  independent,  to  all  the  rights  and  powers  of  sovereign  states, 
and  that  they  did  not  derive  them  from  concessions  made  by  the  British  king. 
The  treaty  of  peace  contains  a  recognition  of  their  independence,  not  a  grant  of  it. 
From  hence  it  results,  that  the  laws  of  the  several  state  governments  were  the 
laws  of  sovereign  states,  and  as  such  were  obligatory  upon  the  people  of  such 
state  from  the  time  they  were  enacted." 

New  states  may  be  recognized  conditionally.  By  the  4.3d  article  of  the  treaty  of 
Berlin,  1878,  it  is  stipulated  that  the  independence  of  Roumania  shall  be  recognizeil 
by  the  high  contracting  parties  "  on  the  conditions  laid  down  in  the  two  following 
articles."  These  conditions  are,  first,  that  no  person  shall  be  deprived  of  civil  or 
political  rights  by  reason  of  his  creed  ;  and,  second,  that  Koumania  shall  restore  to 
IJu-isia  certain  territory  detached  from  Russia  by  the  treaty  of  Paris,  18.")G. 

Servia  was  recognized  upon  a  similar  condition  as  to  religious  freedom.  (Articles 
U  and  3o.) 


CHAP.  I.]  H^VRCOUET    V.  GAILLARD.  15 

"  We  think  then,  hoAvever  individual  judges  might  construe  the 
treaty  of  St.  Ildefonso,  it  is  the  province  of  the  court  to  conform  its 
decisions  to  the  will  of  the  legislature,  if  that  will  has  been  clearly 
expressed.  *  *  * 

"  After  these  acts  of  sovereign  power  over  the  territory  in  dispute, 
asserting  the  American  construction  of  the  treaty  by  which  the 
government  claims  it,  to  maintain  the  opposite  construction  in  its 
own  courts  would  certainly  be  an  anomaly  in  the  history  and  practice 
of  nations.  If  those  departments  which  are  entrusted  with  the 
foreign  intercourse  of  the  nation,  which  assert  and  maintain  its 
interests  against  foreign  powers,  have  unequivocally  asserted  its 
right  of  dominion  over  a  country  of  which  it  is  in  possession,  and 
which  it  claims  under  a  treaty  ;  if  the  legislature  has  acted  on  the  con- 
struction thus  asserted,  it  is  not  in  its  own  courts  that  this  construc- 
tion is  to  be  denied.  A  question  like  this  resi^ecting  the  boundaries 
of  nations,  is,  as  has  been  truly  said,  more  a  political  than  a  legal 
question  ;  and  in  its  discussion  the  courts  of  every  country  must 
respect  the  pronounced  will  of  the  legislature."  ^ 


HAECOURT  V.  GAILLARD. 

Supre:u:e  Coukt  of  the  United  States. 
(12  ]Mieaton,  523.) 

This  was  the  case  of  a  British  grant  of  land  within  the  hmits  of  the  old  thirteen 
colonies,  made  during  the  Revolutionary  war,  in  1777. 

Held  that  such  grant  was  invalid,  on  the  ground  that  the  title  to  lands  had 
already  passed  to  tlu;  United  States. 

Extract  from  the  opinion  of  the  court : — 

"  But  this  is  not  the  material  fact  in  the  case ;  it  is  this,  that  this 
limit  was  claimed  and  asserted  by  both  of  those  states  in  the  Declara- 
tion of  Independence,  and  the  right  to  it  was  established  by  the 
most  solemn  of  all  international  acts,  the  treaty  of  peace.  It  has 
never  been  admitted  by  the  United  States,  that  they  acquired  any- 
thing by  way  of  cession  from  Great  Britahi  by  that  treaty.  It  has 
been  viewed  only  as  a  recognition  of  pre-existing  rights,  and  on  that 
principle  the  soil  and  sovereignty,  within  their  acknowledged  limits, 
were  as  much  theirs  at  the  declaration  of  independence  as  at  this 

1  To  the  same  effect,  see  In  re  Cooper,  1-13  United  States  Reports,  472, 


16  STATES.  [part  I. 

hour.  Bj'  reference  to  the  treaty,  it  will  be  found  that  it  amounts 
to  a  simple  recognition  of  the  independence  and  the  limits  of  the 
United  States,  without  any  language  purporting  a  cession  or  relin- 
quishment of  right  on  the  part  of  Great  Britain.  In  the  last  article 
of  the  treaty  of  Ghent  will  be  found  a  provision  respecting  grants  of 
land  made  in  the  islands  then  in  dispute  between  the  two  states, 
which  affords  an  illustration  of  this  doctrine.  By  that  article,  a 
stipulation  is  made  in  favor  of  grants  before  the  war,  but  none  for 
those  which  were  made  during  the  war.  And  such  is  unquestion- 
ably the  law  of  nations.  War  is  a  suit  prosecuted  b}^  the  sword ; 
and  where  the  question  to  be  decided  is  one  of  original  claim  to  ter- 
ritory, grants  of  soil  made  flagrante  hello  by  the  party  that  fails 
can  only  derive  validity  from  treaty  stipulations." 


OPIXIOX  OF  THE  ATTORXEY-GEXERAL  OF  THE  UNITED 

STATES,  1856. 

(8  Op.  Att.-Gen.  175.) 

"When  a  river  forms  the  boundary  between  two  states. 

Sir, — Your  note  of  this  date,  communicating  a  clause  in  the 
draft  of  the  jjroposed  report  of  the  commissioners  for  determining  the 
boundary  between  the  Mexican  Republic  and  the  United  States, 
presents  the  following  question  of  public  law : 

"  A  portion  of  the  boundary  is  formed  by  the  Rio  Bravo,  which  is 
subject  to  change  its  course  in  two  ways :  first,  by  gradual  accretion 
of  one  of  its  banks,  followed,  in  many  cases,  by  corresponding  deg- 
radation of  the  opposite  bank ;  and,  secondly,  by  the  more  violent 
action  of  the  water,  leaving  its  actual  bed  and  forcing  for  itself  a 
new  one  in  another  direction.  In  case  of  any  such  changes  in  the 
bed  of  the  river,  does  the  boundary  line  shift  with  them,  or  does 
that  line  remain  constant  where  the  main  course  of  the  river  ran  as 
represented  by  the  maps  accompanying  the  report  of  the  commis- 
sioners ? 

"  The  response  to  this  inquiry  depends,  in  part,  on  the  terms  of  the 
treaty  between  the  two  republics  prescribing  the  boundary  line,  the 
material  part  of  which,  in  so  far  as  regards  the  present  question,  is 
to  effect,  that  the  line  '  beginning  in  the  Gulf  of  Mexico,  three 
leagues  from  land,  opposite  the  mouth  of  the  Rio  Grande,'  shall 
proceed  thence  'up  the  middle  of  that  river'  to  a  certain  point. 
The  treaty  further  provides  that  commissioners  appointed  by  the 


CHAr.  1.]  OPINION   OF   THE    ATTOUNEY-GENEIIAL.  17 

two  governme.nts  shall  survey  and  mark  out  upon  the  land  the 
stipulated  line,  which,  as  agreed  upon  and  established  by  them, 
shall  in  all  time  be  faithfully  respected,  without  any  variation 
therein,  unless  by  express  and  free  consent  of  both  republics 
(Treaty  of  December  30,  1853,  10  Stat,  at  Large,  p.  103-i.) 

"  If  the  question  here  were  of  certain  other  parts  of  the  boundary 
which  are  to  run  on  parallels  of  latitude  or  by  straight  line  from  point 
to  point,  in  that  case  the  monuments  placed  by  the  commissioners,  or 
the  line  as  otherwise  fixed  by  descriptive  words  referring  to  natural 
objects,  or  by  the  drawings  and  maps  of  the  commissioners,  would, 
it  is  plain,  be  conclusive,  in  all  time,  by  force  of  the  stipulations  of 
the  treaty.  It  would  be  the  line  agreed  upon  and  established,  even 
although  it  should  afterwards  prove  that,  by  reason  of  error  of  as- 
tronomical observations  or  of  calculation,  it  varied  from  the  parallel 
of  latitude  where  that  was  the  line,  or  in  the  other  part  did  not  make 
exactly  a  straight  hue.  So,  if,  in  another  portion  of  the  boundary, 
which  calls  for  the  rivers  Gila  and  Colorado,  there  were  controversy 
concerning  the  identity  of  either  as  upon  the  northeastern  boundary 
of  the  United  States,  as  there  once  was  in  regard  to  the  true  St. 
Croix,  then,  also,  by  force  of  the  treaty,  the  determination  of  that 
point,  by  the  commissioners,  would  be  conclusive  in  all  time.  But 
the  present  question  is  a  different  one,  and  depends  in  part  for  its 
solution  upon  other  considerations. 

"In  this  case  the  boundary  is  not  an  astronomical  or  geographical 
line,  but  a  natural  object,  defined  by  the  treaty.  And  there  is  no> 
equivocation  here  between  two  distinct  natural  objects,  each  of  them 
answering  to  the  descriptive  language  of  a  stipulation.  It  is  the 
Rio  Bravo,  with  a  course  as  definite,  and  almost  as  destitute  of  trib- 
utaries and  embranchments,  in  its  main  course,  as  the  Xile.  That  is 
a  fact  which  cannot  be  modified  by  surveys  or  reports. 

"  However,  the  established  principles  of  public  law  come  in  here, 
to  settle  the  question  in  all  its  relations. 

"  The  respective  territories  of  the  United  States  and  of  the  IMexi- 
can  rJepublic  are  arcifinious  ;  that  is  to  say,  territories  separated  not 
by  a  mathematical  line,  but  by  natural  objects  of  indeterminate 
natural  extension  which  of  themselves  serve  to  keep  off  the  public 
enemy.  Such  are  mountains  and  rivers.  (Barbeyrac's  Grotius,  liv. 
ii.,  chap.  3,  §  16  and  note;  Coceii  Grotius  Ulustratus,  ibid.) 

"When  a  river  is  the  dividing  limit  of  arcifinious  territories,  the 
natural  changes  to  which  itself  is  liable,  or  which  its  action  may 
produce  on  the  face  of  the  country,  give  rise  to  various  questions, 
according  to  the  physical  events  which  occur,  and  the  previous 
relation  of  the  river  to  the  respective  territories.  The  most  simple 
2 


18  STATES.  [r.VKT  I. 

of  all  the  original  conditions  of  the  inquiry  is  where  the  river  apper- 
tains by  convention  equally  to  both  countries,  their  rights  being  on 
^ither  side  to  the^/ihan  aquas,  or  middle  of  the  channel  of  the  stream. 
That  is  the  present  fact. 

"  With  such  conditions,  "whatever  changes  happen  to  either  bank 
of  the  river  by  accretion  on  the  one  or  degradation  of  the  other ; 
that  is,  by  the  gradual  and,  as  it  were,  msensible  accession  or  ab- 
straction of  mere  particles,  the  river  as  it  runs  continues  to  be  the 
boundary.  One  country  may.  in  process  of  time,  lose  a  little  of  its 
territor}',  and  the  other  gain  a  little,  but  the  territorial  relations 
cannot  be  reversed  by  such  imperceptible  mutations  in  the  course  of 
the  river.  The  general  aspect  of  thmgs  remains  unchanged.  And 
the  convenience  of  allowing  the  river  to  retain  its  previous  function, 
notwithstanding  such  insensible  changes  in  its  course,  or  in  either 
of  its  banks,  outweighs  the  inconveniences  even  to  the  injured  party ; 
it  is  a  detriment,  which,  happening  gradually,  is  inappreciable  in 
the  successive  moments  of  its  progression. 

"  But,  on  the  other  hand,  if.  deserting  its  original  bed,  the  river 
forces  for  itself  a  new  channel  in  another  direction,  then  the  nation, 
through  whose  territor}^  the  river  thus  breaks  its  way,  suffers  in- 
jury by  the  loss  of  territory  greater  than  the  benefit  of  retaining  the 
natural  river  boundary,  and  that  boundary  remains  in  the  middle  of 
the  deserted  river  bed.  For,  in  truth,  just  as  a  stone  pillar  con- 
stitutes a  boundary,  not  because  it  is  a  stone,  but  because  of  the 
place  in  which  it  stands,  so  a  river  is  made  the  limit  of  nations,  not 
because  it  is  running  water  bearing  a  certain  geographical  name,  but 
because  it  is  water  flowing  in  a  given  channel,  and  within  given 
banks,  which  are  the  real  international  boundary." 


Section  6. — The  Effect  of  a  Chaxge  of  Sovereignty. 


(")    ^'j'on  Puhllc  Hifjhts  and  Obligations. 

TEXAX  boxds. 

(1  Wharton' fs  Digest,  20-23.) 

During  the  period  of  Texan  independence,  that  State  had  issued  bonds  to  the 
extent  of  many  millions  of  dollars,  secured  by  the  revenues  of  the  State;  and 
in  lf>4.j,  when  Texas  was  annexed  to  the  United  States,  her  custom  houses  and  the 
control  over  customs  duties  passed  to  the  federal  government.  Some  of  these 
bonds  were  held  in  England ;  and  an  attempt  was  made  before  the  claims  commis- 


CHAr.  I.]  TEXAN   BONDS.  19 

sion  of  lS5o,  for  the  adjnstment  of  claims  between  England  and  the  United  States, 
to  hold  the  federal  government  responsible  for  the  paym(!nt  of  the  Texan  bonds. 

In  Ins  opinion,  'Mr.  Upliam,  commissioner  said  : — 

"  Tlie  matter  of  the  indebtedness  of  Texas  was  a  distinct  subject 
of  agreement  by  the  terms  of  the  union.  According  to  those  terms 
tlie  vacant  and  unappropriated  lands  witliin  the  limits  of  Texas  were 
to  be  retained  by  her,  '  and  applied  to  tlie  payment  of  the  debts  and 
liabilities  of  the  Republic  of  Texas,  and  the  residue  of  the  lands, 
after  discharging  these  debts  and  liabilities,  was  to  be  disposed  of  as 
the  State  might  direct,  but  in  no  event  were  the  debts  and  liabilities 
to  become  a  charge  upon  the  Government  of  the  United  States.'  (U.  S. 
Statutes  at  Large,  vol.  5,  p.  798.) 

"  The  lands  of  Texas  were  thus  specifically  set  apart  for  the  pay- 
ment of  the  debts  of  Texas,  by  agreement  of  the  two  Governments,  in 
addition  to  any  separate  pledge  Texas  had  previously  made  of  this 
class  of  property,  for  the  payment  of  her  debts. 

"  The  United  States  subsequently,  by  act  of  Congress,  on  the  9th 
of  September,  1850,  on  condition  of  the  cession  of  large  tracts  of 
these  lands,  agreed  to  pay  Texas  $10,000,000,  but  stipulated  '  that 
$5,000,000  of  the  amount  should  be  retained  in  the  United  States 
treasury  until  creditors,  holding  bonds,  for  which  duties  on  imports 
were  specifically  pledged,  should  file  releases  of  all  claims  against 
the  United  States.'     [U.  S.  Statutes  at  Large,  vol.  9,  ch.  49,  p.  446.] 

"  It  thus  appears  that  the  United  States  has  acted,  from  the  out- 
set, in  concert  with  Texas,  in  causing  express  provision  to  be  made 
for  the  payment  of  these  debts. 

"  A  difficulty  early  arose  in  carrying  the  law,  above  cited,  into 
effect,  for  the  reason  that  the  pledge  of  payment  of  the  debts  of 
Texas  was  made  generally  upon  her  revenues,  and  was  not  specific 
'  on  imposts  '  eo  nomine,  and  for  the  further  reason  that  doubts  arose 
whether  any  portion  of  the  debts  could  be  paid  under  this  contract, 
unless  the  whole  could  be  discharged." 

(Report  of  the  commission  of  claims  under  the  convention  of  1853.) 

Mr.  Dana  says  of  this  case : — 

"  It  certainly  would  not  be  satisfactory  to  say  that  the  United 
States  discharges  its  obligation  to  the  creditors  of  Texas,  to  whom 
her  customs  were  pledged,  by  paying  only  the  amount  of  the  cus- 
toms received. 

"  The  United  States  determines  what  those  duties  shall  be,  in 
reference  to  the  interest  and  policy  of  the  whole  Republic.  The 
condition  of  Texas  is  changed  by  her  annexation.  The  new  govern- 
ment has  a  large  control  over  the  material  resources  of  the  inhabit- 


20  STATES.  [PAKT  I. 

ants,  in  the  way  of  internal  revenues,  excise  or  direct  taxation,  in  its 
demands  on  tlie  services  of  tlie  people,  and  in  the  debts  it  can  impose  ; 
in  fact,  the  entire  public  system  of  Texas  has  passed  into  other  hands, 
and  no  such  state  of  things  any  longer  exists  as  that  to  Avhich  the 
creditor  looked.  It  may  be  better  or  worse,  but  it  is  not  the  same  ; 
and,  if  the  duties  laid  by  the  United  States  and  collected  in  Texan 
ports  did  not  in  fact  pay  the  debts,  it  would  be  unjust  for  the  United 
States  to  limit  the  payment  of  the  creditor  to  them.  The  truth  is, 
by  the  annexation  the  United  States  changed  the  nature  of  the 
thmg  pledged,  and  is  bound  generally  to  do  equity  to  the  creditor." 
(Dana's  AA^heaton,  note  18.) 

Mr.  Lawrence  says :  "  The  liability  of  the  United  States  for  the 
debts  of  Texas  came  before  the  mixed  commission,  under  the  con- 
vention ^^•ith  England  of  1853,  in  the  case  of  a  British  subject  who 
had  received  before  the  annexation,  bonds  secured  by  a  pledge  of  the 
faith  and  revenue  of  Texas.  It  was  disposed  of  on  the  ground  that 
never  having  been  made  a  subject  for  international  interposition 
against  the  United  States,  it  did  not  fall  within  the  scope  of  the  con- 
vention ;  but  it  seemed  to  be  admitted  that  the  liability  of  the  United 
States,  if  any,  arose,  not  from  the  merger,  but  from  the  transfer, 
under  the  Constitution  of  the  United  States,  to  the  Federal  Govern- 
ment of  the  duties  on  imports.  It  was  said  by  the  American  Com- 
missioner, in  announcing  his  opinion,  that  it  was  an  inaccurate  view 
of  the  case  to  regard  this  annexation  as  an  entire  adoption  of  one  na- 
tion audits  revenues  by  another.  'Texas  is  still  a  sovereign  State, 
Avith  all  the  rights  and  capacities  of  government,  except  that  her 
international  relations  are  controlled  by  the  United  States,  and  she 
has  transferred  to  the  United  States  her  right  of  duties  on  imports.' 

"  And  he  seemed  to  consider  any  claim  arising  from  the  previous 
pledge  of  such  duties  to  be  limited  to  their  value.  The  British 
commissioner  held  that  the  obligation  of  Texas  to  pay  her  debts  is 
not  in  dispute,  nor  has  it  been  argued  that  the  mere  act  of  her  annex- 
ation to  the  United  States  has  transferred  her  liabilities  to  the 
Federal  Government,  though  certainly,  as  regards  foreign  govern- 
ments, the  United  States  is  now  bound  to  see  that  the  obligations  of 
Texas  are  fulfilled.  It  is  the  transfer  of  the  integral  revenues  of 
Texas  to  the  Federal  Govennnent  that  is  relied  on  as  creating  the 
new  liability.'*^ 

(Decisions  of  the  Commission  of  Claims  under  the  convention  of 
lsr)3,  pp.  4(l.5-420.     Lawrence's  Wheaton,  ed.  18G3,  p.  54,  note). 

1  When  Loinbardy  and  Venice  were  resp.'Ctively  acquired  by  Italy  at  the  close  of 
the  wars  of  is."j;i  and  180(»  with  Austria,  the  Italian  government  assumed  no  part 
of  the  general  debt  of  Austria,  but  only  the  local  debts  of  the  ceded  provinces. 


CHAP.  1.]  THE    UNITED    STATES    V.  PEUCIIEMAX.  21 

OPINION  OF  CHANCELLOR  KENT. 

{KenV.s  Commentaries,  I.  25.) 

"  It  is  well  to  be  understood,  at  a  period  when  alterations  in  the 
constitutions  of  governments,  and  revolutions  in  states,  are  familiar, 
that  it  is  a  clear  position  of  the  law  of  nations,  that  treaties  are  not 
affected,  nor  positive  obligations  of  any  kind  with  other  powers,  or 
with  creditors,  weakened,  by  any  such  mutations.  A  state  neither 
loses  any  of  its  rights,  nor  is  discharged  from  any  of  its  duties,  by 
a  change  in  the  form  of  its  civil  government.  The  body  politic  is 
still  the  same,  though  it  may  have  a  different  organ  of  communica- 
tion. So,  if  a  state  should  be  divided  in  respect  to  territory,  its 
rights  and  obligations  are  not  impaired ;  and  if  they  have  not  been 
apportioned  by  special  agreement,  those  rights  are  to  be  enjoyed, 
and  those  obligations  fulfilled,  by  all  the  parts  in  common." 

(b)  Upon  Private  liights. 
THE  UNITED  STATES  v.  PERCHEMAN. 

SUPEEILE    COUKT  OF  THE    UNITED  StATES,   1833. 
(7  Peters,  51,  80.) 

Juan  Percheman  claimed  two  thousand  acres  of  land  lying  in  the  territory  of 
Elorida,  by  virtue  of  a  grant  of  the  Spanish  governor  of  that  province  made  in  1815. 
After  Florida  was  ceded  to  the  United  States  by  the  treaty  of  1819,  this  claim  M'as 
rejected  by  the  United  States  commissioners  appointed  to  settle  claims  to  territoi-y 
in  Florida;  and  the  question  then  came  before  the  court  for  decision. 

Held  that  title  to  private  property  in  the  soil  is  not  affected  by  a  cession  of 
territory. 

Marshall,  C.  J.,  delivered  the  opinion  of  the  court,  an  extract  from 
which  is  as  follows  : — 

So,  in  the  case  of  the  cession  of  Alsace  and  Lorraine  to  Germany  in  1871,  no  part 
of  the  French  national  debt  was  assumed  by  Germany  on  their  accoinit.  (IJluiU- 
schli:   Droit  International,  Article  48.) 

On  the  other  hand,  on  the  seizure  of  Schleswig-Holstein  by  Prussia,  in  1800,  the 
debt  of  Denmark  was  divided  between  that  country  and  Schleswig-Holstein;  "  and 
in  the  same  year,  Italy,  by  convention  with  France,  took  upon  itself  so  nuich  of 
the  Papal  debt  as  was  proportionate  to  the  revenues  of  the  Papal  provinces  which. 
it  had  appropriated."     (Hall's  International  Law,  ;]d  ed.,  102,  note.) 


22  STATES.  [part  I. 

"  It  maj'  not  be  unworthy  of  remark  that  it  is  very  unusual  even 
in  cases  of  conquest,  for  the  conqueror  to  do  more  than  to  displace 
the  sovereign  and  assume  donmiion  over  tiie  country.  The  modern 
usage  of  nations,  which  has  become  law,  would  be  violated ;  that 
sense  of  justice  a,nd  of  right  which  is  acknowledged  and  felt  by  the 
whole  civilized  world  would  be  outraged,  if  private  property  should 
be  generally  confiscated,  and  private  rights  annulled.  The  people 
change  their  allegiance ;  their  relation  to  their  ancient  sovereign  is 
dissolved  ;  but  their  relations  to  each  other,  and  their  rights  of  prop- 
erty, remain  imdisturbed.  If  this  be  the  modern  rule  even  in  cases 
of  conquest,  who  can  doubt  its  application  to  the  case  of  an  amicable 
cession  of  territory  ?  Had  Florida  elumged  its  sovereign  by  an  act 
containing  no  stiijulation  respecting  the  property  of  uidividuals,  the 
right  of  property  in  all  those  who  became  subjects  or  citizens  of  the 
new  government  would  have  been  unaffected  by  the  change.  It 
would  have  remamed  the  same  as  under  the  ancient  sovereign.  *  *  * 

"A  cession  of  territory  is  never  understood  to  be  a  cession  of 
the  property  belongmg  to  its  inhabitants.  The  king  cedes  that  only 
which  belonged  to  him.  Lands  he  had  previously  granted  were  not 
his  to  cede.  Neither  party  could  so  understand  the  cession.  Xeither 
party  could  consider  itself  as  attempting  a  wrong  to  individuals, 
condemned  by  the  practice  of  the  whole  civilized  world.  The  cession 
of  a  territory  hy  its  name  from  one  sovereign  to  another,  conveying 
the  compound  idea  of  surrendering  at  the  same  time  the  lands  and 
the  people  who  inhabit  them,  would  be  necessarily  understood 
to  pass  the  sovereignty  only,  and  not  to  interfere  with  private 
property."  ^ 


OPIXIUX  OF  EAYAPtD,  SECRETARY  OF  STATE. 

Despatch  to  Rouerts,  Maecu  20,  1886. 

(1  IVIiarton's  Diyest,  16.) 

In  the  territory  conquered  by  Chili  from  Peru  in  tlae  war  of  187!>-18S2,  citizens 
of  the  United  States  had  acquired  certain  rights  from  tlie  Peruvian  government 
which,  after  the  conquest,  the  CliiUan  government  was  inclined  not  to  respect. 
In  Mr.  Bayard's  opinion,  rights  of  individuals  acquired  under  a  former  govern- 
ment should  be  respected  in  the  case  even  of  conquest  by  another  government. 

"  The  decision  noAv  made  rests  on  an  alleged  rule  of  interna- 
tional law  whicli,  assumed,  as  it  now  is,  by  the  Government  of  Chili, 

^  To  the  same  effect  in  Mutual  Asa.  Society  v.  Wntt.s^  1  Wheaton,  279,  282. 


CHAr.  I.]  OPINION   OF   BAYARD.  23 

becomes  a  proper  matter  of  discussion  between  ourselves  and  that 
Government.  It  is  asserted  by  tlie  Government  of  Cliili  (for,  in 
international  relations,  and  the  maintenance  of  international  duties, 
tlie  action  of  the  judiciary  in  Cliili  is  to  be  treated,  when  assumed 
by  the  Government,  as  the  act  of  the  Government)  that  a  sovereign, 
when  occupying  a  conquered  territory,  has,  by  international  law, 
the  right  to  test  titles  acqidred  under  his  predecessor  by  applying 
to  them  his  own  municipal  law,  and  not  the  municipal  law  of  his 
predecessor  under  which  they  vested.  *  *  * 

"The  Government  of  the  United  States,  therefore,  holds  that 
titles  derived  from  a  duly  constituted  prior  foreign  Government  to 
which  it  has  succeeded  are  '  consecrated  by  the  law  of  nations '  even 
as  against  titles  claimed  under  its  own  subsequent  laws.  The  rights 
of  a  resident — neutral — having  become  fixed  and  vested  by  the  law 
of  the  country — cannot  be  denied  or  injuriously  affected  by  a  change 
in  the  sovereignty  or  public  control  of  that  country  by  transfer  to 
another  Government.  His  remedies  may  be  affected  by  the  change 
of  sovereignty,  but  his  rights  at  the  time  of  the  change  nnist  he 
measured  and  determined  by  the  law  under  which  he  acquired 
them.  *  *  *  The  Government  of  the  United  States  is  therefore  pre- 
pared to  insist  on  the  continued  validity  of  such  titles,  as  held  by 
citizens  of  the  United  States,  when  attacked  by  foreign  Governments 
succeeding  that  by  which  they  [were]  granted.  Title  to  land  and 
landed  improvements,  is,  by  the  law  of  nations,  a  continuous  right, 
not  subject  to  be  divested  by  any  retroactive  legislation  of  new 
Governments  taking  the  place  of  that  by  which  such  title  was  law- 
fully granted.  Of  course  it  is  not  intended  here  to  deny  the  pre- 
rogative of  a  conqueror  to  confiscate  for  political  offenses,  or  to  with- 
drav>^  franchises  which  by  the  law  of  nations  can  be  withdrawn  by 
Governments  for  the  time  being.  Such  prerogatives  have  been  con- 
ceded by  the  United  States  as  well  as  by  other  members  of  the 
family  of  nations  by  which  international  law  is  constituted.  What, 
however,  is  here  denied,  is  the  right  of  any  Government  to  declare 
titles  lawfully  granted  by  its  predecessor  to  be  vacated  because  they 
could  not  have  been  lawfully  granted  if  its  own  law  had,  at  the 
time  in  question,  prevailed. 

'-  This  pretension  strikes  at  that  principle  of  historical  municipal 
continuity  of  Governments  which  is  at  the  basio  of  mternaLional  law.'' 


24  STATES.  [rAET  I. 


Section  7. — De  Facto  Governments. 


(a)  Ktcoijnition  of  lielligerency. 
OPIXIOX  OY  DAXA. 

(Dana's  Edition  of  JHteaton,  p.  34,  note.) 

"The  occasion  for  the  accordance  of  belligerent  rights  arises  when 
a  civil  conflict  exists  within  a  foreign  state.  The  reason  which  re- 
quires and  which  can  alone  justify  this  step  by  the  government  of 
another  countr}^  is,  that  its  own  rights  and  interests  are  so  far 
affected  as  to  require  a  definition  of  its  own  relations  to  the  parties. 
Where  a  parent  government  is  seeking  to  subdue  an  insurrection  by 
municipal  force,  and  the  insurgents  claim  a  political  nationality  and 
belligerent  rights  which  the  parent  government  does  not  concede,  a 
recognition  by  a  foreign  state  of  full  belligerent  rights,  if  not  justi- 
fied by  necessity,  is  a  gratuitous  demonstration  of  moral  support  to 
the  rebellion,  and  of  censure  upon  the  parent  government.  But  the 
situation  of  a  foreign  state  with  reference  to  the  contest  and  the 
condition  of  affairs  between  the  contending  parties,  may  be  such  as 
to  justify  this  act.  It  is  important,  therefore,  to  determine  what 
state  of  affairs,  and  what  relations  of  the  foreign  state,  justify  the 
recognition. 

"  It  is  certain  that  the  state  of  things  between  the  parent  state 
and  insurgents  nuist  amount  in  fact  to  a  war,  in  the  sense  of  inter- 
national law,  that  is,  powers  and  rights  of  war  must  be  in  actual 
exercise:  otherwise  the  recognition  is  falsified,  for  the  recognition 
is  of  a  fact.  The  tests  to  determine  the  question  are  various,  and 
far  more  decisive  where  there  is  maritime  war  and  connnercial 
relations  with  foreigners,  *  *  * 

"As  to  the  relation  of  the  foreign  state  to  the  contest,  if  it  is 
solely  on  land,  and  the  foreign  state  is  not  contiguous,  it  is  difficult 
to  imagine  a  call  for  the  recognition.  If,  for  instance,  the  United 
States  should  formally  recognize  belligerent  rights  of  an  insurgent 
community  at  the  center  of  Europe,  with  no  seaports,  it  would  re- 
quire a  hardly  supposal)le  necessity  to  make  it  else  than  a  mere  de- 
monstration of  moral  support.  ]]at  a  case  may  arise  Avhere  a  for- 
eign state  nuist  decide  whether  to  hold  the  parent  state  responsible 


CHAr.  I.]  OPINION   OF   DANA.  2;3 

for  acts  done  by  the  insurgents  or  to  deal  with  the  insurgents  as  a 
de  facto  government.  (Mr.  Canning  to  Lord  Granville  on  the  Greek 
War,  June  22,  1826.)  If  the  foreign  state  recognizes  belligerency  in 
the  insurgents,  it  releases  the  parent  state  from  responsibility  for 
whatever  may  be  done  by  the  insurgents,  or  not  done  by  the  parent 
state,  where  the  insurgent  power  extends.  (Mr.  Adams  to  ]Mr. 
Seward,  June  11,  1861,  Dip.  Con.  105.)  In  a  contest  wholly  upon 
lajid,  a  contiguous  state  may  be  obliged  to  make  the  decision 
whether  or  not  to  regard  it  as  war ;  but,  in  practice  this  has  not 
been  done  by  a  general  and  prospective  declaration,  but  by  actual 
treatment  of  cases  as  they  arise.  Where  the  insurgents  and  the 
parent  state  are  maritime,  and  the  foreign  nation  has  extensive 
commercial  relations  and  trade  at  the  ports  of  both,  and  the  foreign 
nation  and  either  or  both  of  the  contending  parties  have  consid- 
erable naval  force,  and  the  domestic  contest  must  extend  itself  over 
the  sea,  then  th.e  relations  of  the  foreign  state  to  this  contest  are  far 
different.  In  such  a  state  of  things,  the  liability  to  political  com- 
plications, and  the  questions  of  right  and  duty  to  be  decided  at  once, 
usually  away  from  home,  by  private  citizens  or  naval  officers,  seem 
to  require  an  authoritative  and  general  decision  as  to  the  status  of 
the  three  parties  involved.  If  the  contest  is  a  war,  all  foreign 
citizens  and  officers,  ^^'hether  executive  or  judicial,  are  to  follow  one 
line  of  conduct.  If  it  is  not  a  war,  they  are  to  follow  a  totally  dif- 
ferent line.  If  it  is  a  war,  the  commissioned  cruisers  of  both  sides 
may  stop,  search  and  capture  the  foreign  merchant- vessel ;  and  that 
vessel  must  make  no  resistance,  and  must  submit  to  adjudication 
by  a  prize  court.  If  it  is  not  a  war,  the  cruisers  of  neither  party  can 
stop  or  search  the  foreign  merchant- vessel ;  and  that  vessel  may 
resist  all  attempts  in  that  direction,  and  the  ships  of  v/ar  of  the  for- 
eign state  may  attack  and  capture  any  cruiser  persisting  in  tlie  at- 
tempt. If  it  is  war,  foreign  nations  must  await  the  adjudication  of 
prize  tribunals.  If  it  is  not  war,  no  such  tribunal  can  be  opened.  If 
it  is  a  war,  the  parent  state  may  institute  a  blockade  jure  gentium 
of  the  insurgent  ports,  which  foreigners  must  respect ;  but,  if  it  is 
not  a  war,  foreign  nations  having  large  commercial  intercourse  Avith 
the  country,  will  not  respect  a  closing  of  insurgent  ports  by  paper 
decrees  only.  If  it  is  a  war,  the  insurgent  cruisers  are  to  be  treated 
by  foreign  citizens  and  officials,  at  sea  and  in  port,  as  lawful  belliger- 
ents. If  it  is  not  a  war,  those  cruisers  are  pirates,  and  may  be 
treated  as  such.  If  it  is  a  war,  the  rules  and  risks  respecting 
carrymg  contraband,  or  despatches,  or  military  persons  come  into 
play.  If  it  is  not  a  war,  they  do  not.  W^ithin  foreign  jurisdiction, 
if  it  is  a  war,  acts  of  the  insurgents  in  the  way  of  preparation  and 


'ZQ  STATES.  [PAP.T  I. 

equipments  for  hostility,  may  be  breaches  of  neutrahty  laws  ;  while, 
if  it  is  not  a  war  they  do  not  come  into  that  category,  but  into  the 
category  of  piracy,  or  of  crimes  by  municipal  law. 

"  Xow,  all  private  citizens  of  a  foreign  state,  and  all  its  executive 
officers,  and  judicial  magistrates,  look  to  the  political  department  of 
their  government  to  prescribe  the  rules  of  their  conduct,  in  all  their 
possible  relations  with  the  parties  to  the  contest.  This  rule  is  pre- 
scribed in  the  best  and  most  intelligible  manner  for  all  possible  con- 
tingencies b}'  the  simple  declaration  that  the  contest  is,  or  is  not,  to 
be  treated  as  war.  If  the  state  of  things  requires  the  decision,  it 
must  be  made  by  the  political  department  of  the  government.  It  is 
not  fit  that  cases  should  be  left  to  be  decided  as  they  may  arise,  by 
private  citizens,  or  naval  or  judicial  officers,  at  home  or  abroad,  by 
sea  or  land.  It  is,  therefore,  the  custom  of  nations  for  the  ijolitical 
department  of  a  foreign  state  to  make  the  decision.  It  owes  it  to  its 
own  citizens,  to  the  contending  parties,  and  to  the  peace  of  the  world, 
to  make  that  decision  seasonably.  If  it  issues  a  formal  declaration 
of  belligerent  rights  prematurely,  or  in  a  contest  with  which  it  has 
no  complexity,  it  is  a  gratuitous  and  unfriendly  act.  If  the  parent 
government  complains  of  it,  the  complaint  must  be  upon  one  of  these 
grounds.  To  decide  whether  the  recognition  was  uncalled  for  and 
premature,  requires  something  more  than  a  consideration  of  proxi- 
mate facts,  and  the  overt  and  formal  acts,  of  the  contending  par- 
ties. The  foreign  state  is  bound  and  entitled  to  consider  the  pre- 
ceding histor}^  of  the  parties ;  the  magnitude  and  completeness  of 
the  political  and  military  organization  and  preparations  on  each 
side:  the  probable  extent  of  the  conflict  by  sea  and  land;  the  prob- 
able extent  and  rapidity  of  its  development;  and,  above  all,  the 
prol^ability  tliat  its  own  merchant-vessels,  naval  officers,  and  con- 
suls may  be  precipitated  into  sudden  and  difficult  complications 
abroad.  The  best  that  can  be  said  is,  that  the  foreign  state  may 
protect  itself  by  a  seasonable  decision,  either  upon  a  test  case  that 
arises,  or  by  a  general  prospective  decision  ;  while,  on  the  other 
hand,  if  it  makes  the  recognition  prematurely,  it  is  liable  to  the 
suspicion  of  an  unfriendly  purpose  to  the  parent  state.  The  recogni- 
tion of  belligerent  rights  is  not  solely  to  the  advantage  of  the 
insurgents.  They  gain  the  great  advantage  of  a  recognized  status, 
and  the  opportunity  to  employ  commissioned  cruisers  at  sea,  and  to 
exert  all  the  powers  known  to  maritime  warfare,  with  the  sanction 
of  foreign  nations.  They  can  obtain  abroad  loans,  military,  and  naval 
materials,  and  enlist  men,  as  against  everything  but  neutrality 
laws ;  their  flag  and  commissions  are  acknowledged,  their  revenue 
laws  are  respected,  and  they  acquire  a  rjuasi  political  recognition. 


CHAP.  I.]  THE   LILLA.  27 

On  the  other  hand,  the  parent  government  is  relieved  from  respon- 
sibility for  acts  done  in  the  insurgent  territory ;  its  blockade  of  its 
own  ports  is  respected ;  and  it  acquires  a  right  to  exert,  against  neu- 
tral commerce,  all  the  powers  of  a  party  to  a  maritime  war." 


THE  LILLA. 

U.  S.  District  Coukt  for  Massachusetts,  1862. 

(2  SpragHC'\s  Decisions,  177.) 

The  Lilla  was  condemned  by  a  Prize  Court  of  the  Confederate  States,  and  subse- 
quently sailed  under  the  British  flag.  Held,  that  the  Federal  courts  would  not 
acknowledge  the  validity  of  the  decisions  of  the  prize  courts  of  the  Confederacy, 
although  they  had  recognized  the  belligerence  of  that  government. 

This  was  a  jNIaine  brig  called  the  Betsy  Ames,  captured  by  a  Con- 
federate privateer  commanded  by  IL  S.  Libby,  carried  into  Charles- 
ton, S.  C,  and  there  condemned  and  sold,  the  purchasers  being  John 
Fraser  &  Co.  of  that  city.  Iler  name  was  changed  to  the  JMary 
Wright,  and,  loaded  with  cotton,  under  the  command  of  Libby,  she 
ran  the  blockade,  arrived  at  Liverpool  on  the  2d  of  April,  18(32,  and 
disposed  of  her  cargo.  April  24th  she  was  registered  as  a  British 
vessel,  called  the  Lilla,  and  in  the  name  of  R.  G.  B.,  as  sole  owner. 
A  fortnight  later  she  sailed  for  Nassau,  N.  P.,  under  the  connuand 
of  A.,  according  to  her  papers,  but  really  still  under  command  of 
Libby.  There  is  evidence  going  to  show  that  it  was  arranged  that 
Fraser  &  Co.  should  have  a  steamer  of  theirs  follow  to  Nassau,  there 
take  on  the  Lilla's  cargo  and  proceed  to  Charleston. 

Parts  of  the  cargo  were  falsely  documented  in  the  name  of 
R.  G.  B.  for  the  purpose  of  deceiving  the  United  States  cruisers. 

The  vessel  was  seized  by  the  United  States  gunboat  Quaker  City, 
brought  in,  and  claimed  by  her  original  owners. 

Sprague,  J.,  decided  that  R.  G.  B.  lost  whatever  he  possessed  in 
the  cargo  by  reason  of  his  falsely  documenting  other  goods  as  his 
own  to  deceive  belligerent  cruisers  and  that  the  vessel  should  be 
restored  upon  the  authority  of  the  Act  of  1800,  Chap.  14,  sees.  1,  2. 
U.  S.  Stats,  at  Large,  16,  which  provides  that  when  a  merchant  vessel, 
belonging  to  any  person  under  the  protection  of  the  United  States, 
shall  have  been  taken  by  a  public  enemy,  and  shall  be  recaptured  by 
a  public  armed  vessel  of  the  United  States,  such  vessel  not  having 
been  condennied  by  competent  authority  before  the  recapture,  tha 
same  shall  be  restored  to  the  former  owners  upon  payment  of  one- 


28  STATES.  [I'AKT  I. 

eighth  part  of  the  true  value,  for  and  in  lieu  of  salvage.     The  oourt 
also  saj's  : — 

"  The  second  ohjection  to  this  claim  is  also  fatal.  There  is  no 
doubt  that  this  vessel  was  the  property  of  Maxwell  and  others, 
until  her  capture  by  a  Confederate  privateer.  But  it  is  contended 
that  she  has  since  been  condemned  and  sold  V)y  a  Prize  Court  in 
Cliarleston,  S.  C,  and  the  purchasers  conveyed  her  to  the  claimant 
Bushby.  If  this  were  so,  of  which  there  is  no  sufficient  proof,  still, 
such  proceedings  would  not  divest  the  title  of  the  original  owner. 
In  the  case  of  'The  Amy  Waricick,  t\\\A  Court  AeM,  that  treating  the 
Confederates  in  some  respects  as  belligerents  was  not  an  abandonment 
of  sovereign  rights,  and  by  no  means  precluded  us  from  treating  them 
in  other  respects  as  rebels.  Most  assuredly  I  shall  not  recognize  the 
Southern  Confederates  as  a  nation,  or  as  having  a  government  com- 
petent to  establish  Prize  Courts.  Xo  proceedings  of  any  such  sup- 
loosed  tribunals  can  have  any  validity  here,  and  a  sale  under  them 
■would  convey  no  title  to  the  purchaser,  nor  would  it  confer  upon 
him  any  right  to  give  a  title  to  others.  But  it  is  argued  that,  under 
the  Queen's  proclamation,  recognizing  the  Confederates  as  belliger- 
ents, a  British  court  would  hold  a  sale  to  be  valid.  What  the  decis- 
ion of  a  British  Court  might  be  upon  that  question,  we  do  not  know, 
it  never  having  been  there  litigated.  But  such  a  decision,  if  made, 
would  be  no  more  binding  upon  our  courts  than  the  political 
views  of  the  British  government  would  be  upon  the  President  or  the 
Consrress." 


(Jj)Sriccession  to  tJte  Hiyhts  of  Belligerent    Communities. 
UNITED  STATES  OP^  AMEPJCA  v.  PPJOLEAU. 

ClIAXCEKY,   18GG. 

(25  Law  Journal,  Chancery,  N.  S.,  7.) 

Upon  tlie  suppression  of  the  Rebellion  in  18(3.5,  the  title  to  the  public  property 
of  the  Confederate  government  became  immediately  vested  in  the  government  of 
the  United  .States. 

Toward  the  end  of  the  civil  war  in  the  United  States  (1861- 
18G.5),  tlie  Confederate  government  having  got  possession  of  1,365 
bales  of  cotton  in  Texas,  had  it  shipped  from  Galveston  to  Havana, 
where  it  w^as  consigned  to  an  aGrent  of  Eraser  &  Co.     On  the  10th  of 


CHAP.  I.]     UNITED    STATES    OF   A3kIERICA   V.  PRTOLEAU.  20 

June,  18G5,  the  cotton  was  shipped  from  Iliivana  to  Liverpool,  con- 
signed to  tlie  defendants  Fraser,  Trenholni  &  Co.  (Prioleau  being 
the  English  member  of  the  firm),  and  was  of  the  value  of  40,000^. 
Fraser,  Trenholm  &  Co.  had  made  a  contract  with  one  M'Rae,  gen- 
eral European  agent  of  tlie  Confederate  government,  to  build  eight 
steamships  to  be  employed  in  transporting  cotton  and  other  produce 
from  the  Confederate  States.  They  were  to  receive  all  consignments 
of  said  merchandise  and  sell  the  same  according  to  the  instructions 
they  should  receive  for  that  purpose.  The  company  were  to 
advance  the  expenses  of  transportation,  and  were  then  to  recoup 
themselves  out  of  the  proceeds  of  the  consignments.  They  had 
already  expended  20,000/  for  sailing  expenses,  to  say  nothing  of  the 
cost  of  the  ships. 

When  this  consignment  of  cotton  arrived  in  Liverpool,  the  Con- 
federate government  had  been  dissolved,  and  the  Confederate  States 
'had  submitted  to  the  authority  of  the  L'nited  States  government ; 
and  the  latter  government  filed  a  bill  praying  to  have  the  cotton 
delivered  up  to  them,  and  for  an  injunction  and  receiver. 

Judgment. —  Wood,  V.  C. :  "  There  are  one  or  two  points  which,  I 
think,  are  tolerably  clear  in  this  case.  The  first  point  is  with  reference 
to  the  right  of  the  United  States  of  America,  at  this  moment,  to  the 
cotton,  suljject  to  the  agreement.  I  treat  it  first  in  that  way.  It 
has  scarcely  been  disputed  on  the  present  argument,  and  could 
hardly  be  disputed  at  any  further  stage  of  the  inquiry,  that  the 
right  is  clear  and  distinct,  because  the  cotton  in  question  is  the 
admitted  result  of  funds  raised  by  a  de  facto  government,  exercising 
authority  in  what  were  called  the  Confederate  States  of  America ; 
that  is  to  say,  several  of  those  states  which,  in  union,  formerly  con- 
stituted the  LTnited  States,  and  which  now,  in  fact,  constitute  them  ; 
and  that  de  facto  government,  exercising  its  powers  over  a  consider- 
erable  number  of  states  (more  than  one  would  be  quite  enough), 
raises  money — be  it  by  voluntary  contribution,  or  be  it  by  taxation,  is 
not  of  much  importance.  The  defendant  Prioleau,  in  cross-exam- 
ination, admits  that  they  exercised  considerable  power  of  taxation  ; 
and  with  those  means,  and  claiming  to  exercise  that  authority,  they 
obtained  from  several  of  the  States  of  America  funds  by  which 
they  purchased  this  cotton  for  the  use  of  the  de  facto  government. 
That  being  so,  and  that  de  facto  government  being  displaced,  I 
apprehend  it  is  quite  clear  that  the  United  States  of  America  (that 
is  to  say,  the  government  which  has  been  successful  in  displacing 
the  de  facto  government,  and  whose  authority  was  usurped  or  dis- 
placed, or  whatever  term  you  may  choose  to  apply  to  it),  the  au- 
thority being  restored,  stand,  in  reference  to  this  cotton,  in  the  posi- 


30  STATES.  [l>ART  I. 

tioii  of  those  who  have  acquired,  on  behalf  of  the  citizens  of  the 
United  States,  a  public  propert}^ ;  because  otherwise,  as  has  been 
well  said,  there  would  be  no  body  who  could  sue  in  respect  of,  or 
deal  with,  property  that  has  been  raised,  not  by  contribution  of  any 
one  sovereign  state  (which  might  raise  a  question,  owing  to  the 
peculiar  constitution  of  the  Union,  if  it  had  been  raised  in  Virginia 
or  Texas,  or  in  any  given  State),  but  the  cotton  is  the  product  of 
levies,  voluntary  or  otherwise,  on  the  members  of  tlie  several  states 
which  have  united  themselves  into  the  Confederate  States  of 
America,  and  which  are  now  under  the  control  of  the  present  plaint- 
iffs, and  are  represented,  for  all  purposes,  by  the  present  plaintiffs. 
That  being  so,  the  right  of  the  present  plaintiffs  to  this  cotton,  sub- 
ject to  this  agreement  is,  I  think,  clear,  because  the  agreement  is 
an  agreement  purporting  to  be  made  on  behalf  of  the  then  de  facto 
existing  government,  and  not  of  any  other  persons.  That  case  of 
The  King  of  the  Tico  ^Sicilies  and  the  case  of  The  Kinq  of  SpaifL 
and  other  cases  of  the  same  kind,  which  it  is  not  necessarj'-  to  go 
through,  show  that  whenever  a  government  de  facto  has  obtained 
the  possession  of  property,  us  a  government,  and  for  the  purposes  of 
the  government  de  facto,  the  government  which  displaces  it  suc- 
ceeds to  all  the  rights  of  the  former  government,  and,  among  other 
things,  succeeds  to  the  property  they  have  so  acquired. 

"Now  I  come  to  the  second  head  of  the  question,  and  I  confess  at 
this  moment,  as  at  present  advised,  I  do  not  feel  much  doubt  on  the 
subject,  namely,  the  question  whether  or  not,  taking  this  property, 
they  must  or  must  not  take  it  subject  to  the  agreement.  It  appears 
to  me,  at  present,  they  must  take  it  subject  to  the  agreement.  It  is 
an  agreement  entered  into  by  a  de  facto  government,  treating  with 
persons  who  have  a  perfect  right  to  deal  with  them.  I  apprehend  if 
they  had  been  American  subjects  they  might  do  so.  One  of  them. 
Prioleau,  is  not  an  American  subject ;  he  is  a  naturalized  British 
subject ;  he  would  have  a  perfect  right  to  deal  with  a  de  facto 
government ;  and  it  cannot  be  compared  with  any  one  of  those  cases 
Mr.  Gifford  put,  of  persons  taking  the  property  of  another  with 
knowledge  of  the  rights  of  that  other.  That  is  a  species  of  argu- 
ment that  cannot  be  applied  to  international  cases  of  this  descrip- 
tion, and  for  a  very  good  reason ;  if  so,  there  would  be  no  possibility 
during  the  existence  of  a  government  de  facto  of  a^  y  person  dealing 
with  that  government  in  any  part  of  the  world.  The  courts  of 
every  country  recognize  a  government  de  facto  to  this  extent,  f^r 
the  purpose  of  saying — you  are  established  de  facto,  if  you  are 
carrying  on  the  course  of  government,  if  you  are  allowed  by  those 
whom  you  affect  to  govern  to  levy  taxes  on  them,  and  they  pay 


CHAP.  I.]     UNITED    STATES    OF   AMEKICA   V.  PKIOLEAU.  ol 

those  taxes,  and  contribution  is  made  accordingly,  or  yon  are  acquir- 
ing i3roprety,  and  are  at  war,  having  the  riglits  of  belhgerents,  not 
being  treated  as  mere  rebels  by  persons  who  say  they  are  tbe 
authorized  government  of  the  country.  Otlier  nations  can  have 
nothing  to  do  with  that  matter.  They  say  we  are  bound  to  protect 
our  subjects  who  treat  with  the  existing  government ;  and  we  must 
give  to  those  subjects,  in  our  country,  every  right  wliich  the  govei-n- 
ment  de  facto  can  give  to  them,  and  must  not  allow  the  succeeding 
government  to  assert  any  right  as  against  the  contracts  which  have 
been  entered  into  by  the  government  de  facto  ;  but,  as  expressed  by 
Lord  Cranworth  in  the  case  referred  to,  they  must  succeed  in  every 
respect  to  the  property  as  they  find  it,  and  subject  to  all  the  condi- 
tions and  liabilities  to  which  it  is  subject  and  by  which  they  are 
bound.  Otherwise,  I  do  not  see  any  answer  to  Mr.  James's  illus- 
tration, and  I  do  not  see  why  there  should  not  have  been  a  bill  filed 
to  have  the  Alabama  delivered  up;  *  *  *  because  on  the  theory  of 
the  present  plaintiffs,  it  was  their  property  just  as  much  as  their 
cotton  is  now.  If  the  case  had  been  this  (and  it  is  the  only  case  I 
can  consider  as  making  any  difference,  but  that  difference  would  be 
fatal  to  the  plaintiffs'  case  in  another  point  of  view) :  if  they  had 
been  a  set  of  marauders,  a  set  of  robbers  (as  was  said  to  be  the  case 
in  the  kingdom  of  Naples,  truly  or  untruly),  devastating  the  country, 
and  acquiring  property  in  that  way,  and  then  affecting  to  deal  with 
your  subjects  in  England,  it  would  not  be  the  United  States,  but  the 
individuals  who  had  been  robbed  and  suffered,  who  could  come  as 
plaintiffs.  The  United  States  could  only  come  to  claim  this  because 
it  has  been  raised  by  public  contribution;  and  although  the  United 
States,  who  are  now  the  government  de  facto  and  dejicre,  claim  it 
as  public  property,  yet  it  would  not  be  public  property  unless  it 
was  raised,  as  I  have  said,  by  exercising  the  rights  of  government, 
and  not  by  means  of  mere  robbery  and  violence. 

"I  confess,  therefore,  I  have  so  little  doubt,  that  this  agreement 
is  one  that  would  be  binding  on  the  plaintiffs,  that  I  cannot  act 
against  these  gentlemen  without  sectiring  to  them  the  reasonable 
benefit  of  this  agreement ;  and  I  carmot  put  them  under  any  terms 
which  would  exclude  them  from  the  reasonable  benefit  of  what  they 
are  entitled  to,  and  must  be  held  entitled  to,  as  I  think,  at  the  hear- 
ing of  the  cause." 

[The  Vice  Chancellor  then  proceeds  to  decree  that  the  cotton  was 
now  the  property  of  the  United  States  Government,  but  that  they 
must  take  it  subject  to  the  obligations  entered  into  respecting  it  by 
the  de  facto  Confederate  Government. 

Tbe  defendant  Prioleau  was  appointed  receiver,  with  power  to  sell 


32  STATES.  [PAKT  I. 

the  cotton,  but  he  was  required  to  give  security  for  its  vakie  ultra 
the  20,000^.,  the  amount  of  the  defendant's  lien.^] 


SeCTIOX  8. TEKKITtHilAI,   WaTEKS  OF  A  StATE. 


(a)  Rii'e7's. 
OPIXIOX  OF  WIIEATOX. 

(Wheutons  International  Law,  -id  Ed.,  242.) 

«  The  territory  of  the  state  includes  the  lakes,  seas,  and  rivers, 
entirely  inclosed  within  its  limits.  The  rivers  which  flow  through 
the  territory  also  form  a  part  of  the  domain  from  their  sources  to 
their  mouths,  or  as  far  as  they  flow  within  the  territory,  including 
the  bays  or  estuaries  formed  by  their  junction  with  the  sea.    *    *    * 

"  Things  of  which  the  use  is  inexhaustible,  such  as  the  sea  and 
running  water,  cannot  be  so  appropriated  as  to  exclude  others  from 
using  these  elements  in  any  manner  which  does  not  occasion  a  loss 

1  In  the  case  of  the  United  States  of  America  v.  McRae,  1869,  L.  R.  8  Eq. 
69.  James,  V.  C,  held,  "  tliat,  upon  the  sitppression  of  a  rebellion,  the  restored 
legitimate  government  is  entitled,  as  of  right,  to  all  moneys,  goods,  and  treasure 
which  were  public  property  of  the  government  at  the  time  of  the  outbreak,  such 
right  being  in  no  way  affected  by  the  wrongful  seizure  of  tlie  property  by  the  usurp- 
ing government. 

"But  with  respect  to  property  which  has  been  voluntarily  contributed  to,  or 
acquired  by,  the  insurrectionary  government  in  the  exercise  of  its  usurped  au- 
thority, and  has  been  impressed  in  its  hands  with  the  character  of  public  property, 
the  legitimate  government  is  not,  on  its  restoration,  entitled  by  title  paramount, 
but  as  successor  only  (and  to  that  extent  recognizing  the  authority)  of  the  dis- 
placed usurping  government;  and  in  seeking  to  recover  such  property  from  an 
agent  of  the  displaced  government  can  only  do  so  to  the  same  extent,  and  subject 
to  the  same  rights  and  obligation^,  as  if  that  government  had  not  been  displaced 
and  was  itself  proceeding  agxin^t  the  agent. 

"  Therefore,  a  bill  by  the  United  States  Government,  after  the  suppression  of 
the  rebellion,  against  an  agent  of  tlie  late  Confederate  Government,  for  an  account 
of  his  dealings  in  respect  of  the  Confederate  loan,  which  he  was  employed  to  raise 
in  this  country  [England],  was  dismissel  with  costs,  in  the  absence  of  proof  that 
any  property  to  wliich  the  plaintiffs  were  entitled  in  their  own  right,  as  distin- 
guished from  their  right  as  successors  of  the  Confederate  Government,  ever  reached 
the  hands  of  the  defendant,  and  on  the  plaintiff  declining  to  have  the  account 
taken  on  the  same  footing  as  if  taken  between  the  Confederate  Government  and 
the  defendant  as  the  agent  of  such  government,  and  to  pay  what,  on  the  footing  of 
such  account  might  be  found  due  from  them."  (Quoted  from  2  Phillimore's  Inter- 
national Law,  VA.) 


CHAP.  I.J  THE   XxiVIGATION    OF   THE   MISSrSSFPIT.  33 

or  inconvenience  to  the  proprietor.  Tliis  is  what  is  called  an  in- 
nocent use.  Thus  we  have  seen  that  the  jurisdiction  possessed  by 
one  nation  over  sounds,  straits,  and  other  arms  of  the  sea,  leading 
through  its  own  territory  to  that  of  another,  or  to  other  seas  com- 
mon to  all  nations,  does  not  exclude  others  from  the  right  of  inno- 
cent passage  through  these  communications.  The  same  principle  is 
applicable  to  rivers  flowing  from  one  state  through  the  territory 
of  another  into  the  sea,  or  into  the  territory  of  a  third  state.  The 
right  of  navigating,  for  commercial  purposes,  a  river  which  flows 
through  the  territories  of  different  states,  is  common  to  all  the 
nations  inhabiting  the  different  parts  of  its  banks ;  but  this  right  of 
innocent  passage  being  what  the  text  writers  call  an  hnperfect  rir//>(, 
its  exercise  is  necessarily  modified  by  the  safety  and  convenience  of 
the  state  affected  by  it,  and  can  only  be  effectually  secured  by 
mutual  convention  regulating  the  mode  of  its  exercise." 


THE  NAVIGATION  OF  THE  MISSISSIPPI. 

(Mlieaton'' s  International  Law,  otZ  Ed.,  247.) 

"By  the  treaty  of  joeace  concluded  at  Paris,  in  1763,  between 
France,  Spain,  and  Great  Britain,  the  province  of  Canada  was  ceded 
to  Great  Britain  by  France,  and  that  of  Florida  to  the  same  power 
by  Spain,  and  the  boundary  between  the  French  and  British  pos- 
sessions in  North  America  was  ascertained  by  a  line  drawn  through 
the  middle  of  the  river  Mississippi  from  its  source  to  the  Iberville, 
and  from  thence  through  the  latter  river  and  the  lakes  of  Maurepas 
and  Pontchartrain  to  the  sea.  The  right  of  navigating  the  Missis- 
sippi was  at  the  same  time  secured  to  the  subjects  of  Great  Britain 
from  its  source  to  the  sea,  and  the  passages  in  and  out  of  its  mouth, 
without  being  stopped,  or  visited,  or  subjected  to  the  payments  of 
any  duty  whatsoever.  The  province  of  Louisiana  was  soon  after- 
wards ceded  by  France  to  Spain;  and  by  the  treaty  of  Paris,  1783, 
Florida  was  retroceded  to  Spain  by  Great  Britain.  The  independence 
of  the  United  States  was  acknowledged,  and  the  right  of  navigat- 
ing the  Mississippi  was  secured  to  the  citizens  of  the  United  States 
and  the  subjects  of  Great  Britain  by  the  separate  treaty  between 
these  powers.  But  Spain  having  become  thus  possessed  of  both  banks 
of  the  Mississippi  at  its  mouth,  and  a  considerable  distance  above  its 
mouth,  claimed  its  exclusive  navigation  below  the  point  where  the 
southern  boundary  of  the  United  States  struck  the  river.  This 
claim  was  resisted,  and  the  right  to  participate  in  the  navigation  of 
3 


34  STxVTES.  [I'Airn. 

the  river  from  its  source  to  the  sea  "u-as  insisted  on  by  tlie  United 
States,  imder  tlie  treaties  of  1763  and  1783,  as  well  as  b}^  the  law 
of  nature  and  nations.  The  dispute  was  terminated  by  the  treaty 
of  San  Lorenzo  el  Real,  in  1795  by  the  4th  article  of  which  His 
Catholic  Majesty  agreed  that  the  navigation  of  the  ^lississippi,  in  its 
whole  breadth,  from  its  source  to  the  ocean,  should  be  free  to  the 
citizens  of  the  United  States ;  and  by  the  22d  article,  they  were 
permitted  to  deposit  their  goods  at  the  port  of  New  Orleans,  and 
to  export  them  from  thence,  without  paying  any  other  duty  than 
the  hire  of  the  warehouses.  The  subsequent  acquisition  of  Louis- 
iana and  Florida  l)y  the  L^nited  States  having  included  within  their 
territory  the  whole  river  from  its  source  to  the  Gulf  of  Mexico,  and 
the  stipttlation  in  the  treaty  of  1783,  securing  to  British  subjects  a 
right  to  participate  in  its  navigation,  not  having  been  renewed  by 
the  treaty  of  Ghent,  in  1814,  the  right  of  navigating  the  Mississippi 
is  now  vested  exclusively  in  the  United  States. 

"  The  right  of  the  United  States  to  participate  with  Spain  in  tlie 
navigation  of  the  river  Mississippi,  was  rested  by  the  American 
Government  on  the  sentiment  written  in  deep  characters  on  the  heart 
of  man,  that  the  ocean  is  free  to  all  men,  and  its  rivers  to  all  its 
inhabitants.  This  natural  right  was  found  to  be  universally  acknowl- 
edged and  protected  in  all  tracts  of  country,  united  under  the  same 
political  society,  by  laying  the  navigable  rivers  open  to  all  their 
hdiabitants.  "When  these  rivers  enter  the  limits  of  another  societ}', 
if  the  right  of  the  upper  inhabitants  to  descend  the  sti-eam  was  in 
any  case  obstructed,  it  was  an  act  of  force  b}'  a  stronger  society 
against  a  weaker,  condemned  by  the  judgment  of  mankind.  *  *  * 

"If  the  appeal  was  to  the  law  of  nature  and  nations,  as  expressed 
by  writers  on  the  subject,  it  was  agreed  by  them,  that  even  if  the 
river,  Avliere  it  passes  between  Florida  and  Louisiana,  were  the 
exclusive  right  of  Spain,  still  an  innocent  passage  along  it  was  a 
liatural  right  in  those  inhabiting  its  borders  above.  It  would,  indeed, 
be  what  those  writers  call  an  imperfect  right,  because  the  modifica- 
tion of  its  exercise  depends,  in  a  considerable  degree,  on  the  con- 
veniency  of  the  nation  through  which  they  were  to  pass.  But  it  was 
still  a  rlrjht^  as  real  as  any  other  right  however  well  defined ;  and 
were  it  to  be  refused,  or  to  be  so  shackled  by  regulations  not  neces- 
sary for  the  peace  or  safety  of  the  inhal)itants,  as  to  render  its  use 
impracticable  to  us,  it  would  then  be  an  injury,  of  which  we  should 
be  entitled  to  demand  redress.  The  right  of  the  upper  inhabitants 
to  use  tliis  na-^-igation  was  the  counterpart  to  that  of  those  possess- 
ing the  shores  below,  and  founded  in  the  same  natural  relations 
with  the  soil  and  water.  *  *  * 


CHAr.  1.]      THE    NAVIGATION    OF   THE    ST.  LAAVKENCE.  35 

"  It  ^yas  a  principle,  too,  that  the  right  to  a  thing  gives  a  right 
to  the  means  witliout  which  it  could  not  be  used,  tluit  is  to  say,  that 
the  means  follow  the  end.  Thus  a  right  to  navigate  a  river  draws 
to  it  a  right  to  moor  vessels  to  its  shores,  to  land  on  them  in  cases  of 
distress,  or  for  other  necessary  purposes,  etc.  This  principle  M'as 
founded  in  natural  reason,  was  evidenced  by  the  common  sense  of 
manlcind,  and  declared  by  the  writers  before  quoted."  (Jefferson's 
instructions  to  U.  S.  ministers  in  Spain,  March  18,  1792.  Waite's 
State  Papers,  vol.  x.  pp.  135-140.) 


THE  NAVIGATION  OF  THE  ST.  LAWREXCE. 

(mieaton's  International  Laio,  od  Ed.,  252.) 

"  The  relative  position  of  the  United  States  and  Great  Britain  in 
respect  to  the  navigation  of  the  great  northern  lakes  and  the  river 
St.  Lawrence,  appears  to  be  similar  to  that  of  the  United  States  and 
Spain,  previously  to  the  cession  of  Louisiana  and  Florida,  in  respect 
to  the  Mississippi;  the  L'nited  States  being  in  possession  of  the 
southern  shores  of  the  lakes  and  the  river  St.  Lawrence  to  the  point 
where  their  northern  boundary  line  strikes  the  river,  and  Great 
Britain,  of  the  northern  shores  of  the  lakes  and  the  river  in  its  whole 
extent  to  the  sea,  as  well  as  of  the  southern  banks  of  the  river  from 
the  latitude  45°  north  to  its  mouth. 

"  The  claim  of  the  people  of  the  Ignited  States,  of  a  right  to  navi- 
gate the  St.  Lawrence  to  and  from  the  sea,  was,  hi  182G,  the  subject 
of  discussion  between  the  American  and  British  Governments, 

»  On  the  part  of  the  Ignited  States  Government,  this  right  is  rested 
on  the  same  grounds  of  natural  right  and  obvious  necessity  wliich 
had  formerly  been  urged  in  respect  to  the  river  3Iississippi.  The 
dispute  between  different  European  powers  respecting  the  navigation 
of  the  Scheldt,  in  1784,  was  also  referred  to  in  the  correspondence 
on  this  subject,  and  the  case  of  that  river  was  distinguished  from 
that  of  the  St.  Lawrence  by  its  peculiar  circumstances.  Among 
others,  it  is  known  to  have  been  alleged  by  the  Dutch,  that  the 
whole  course  of  the  two  branches  of  this  river  which  passed  within 
the  dominions  of  Holland  was  eniivelj  artificial ;  that  it  owed  its 
existence  to  the  skill  and  labor  of  Dutchmen ;  that  its  banks  had 
been  erected  and  maintained  by  them  at  a  great  expense.  Hence, 
probably,  the  motive  for  that  stipulation  in  tlie  treaty  of  Westphalia, 
that  the  lower  Scheldt,  with  the  canals  of  Sas  and  Swin,  and  other 


36  STATES.  [I'AKT  I. 

mouths  of  the  sea  adjoining  them,  should  be  kept  closed  on  the  side 
belonging  to  Holland. 

"  But  the  case  of  the  St.  Lawrence  was  totally  different,  and  the 
principles  on  which  its  free  navigation  was  maintained  by  the 
United  States  had  recently  received  an  unequivocal  confirmation  in 
the  solemn  act  of  the  principal  States  of  Europe.  In  the  treaties 
concluded  at  the  Congress  of  Vienna,  it  had  been  stipulated  that  the 
navigation  of  the  Khine,  the  Xeckar,  the  ]\Iayn,  the  Moselle,  the  Maese, 
and  the  Scheldt,  should  be  free  to  all  nations.  These  stipulations,  to 
which  Great  Britain  was  a  party,  might  be  considered  as  an  indica- 
tion of  the  present  judgment  of  Europe  upon  the  general  question. 
The  importance  of  the  present  claim  might  be  estimated  by  the  fact 
that  the  inhabitants  of  at  least  eight  states  of  the  American  Union, 
besides  the  territory  of  Michigan,  had  an  innnediate  interest  in  it, 
besides  the  prospective  interests  of  other  parts  connected  with  this 
river  and  the  inland  seas  through  which  it  communicates  with  the 
ocean.  The  right  of  this  great  and  growing  population  to  the  use 
of  this,  its  only  natural  outlet  to  the  ocean,  was  supported  by  the 
same  principles  and  authorities  which  had  been  urged  by  Mr.  Jeffer- 
son in  the  negotiation  with  Spain  respecting  the  navigation  of  the 
river  Mississippi. 

'.'  The  present  claim  was  also  fortified  by  the  consideration  that 
this  navigation  was,  before  the  war  of  the  American  Revolution,  the 
common  propertj''  of  all  the  British  subjects  inhabiting  this  con- 
tinent, having  been  acquired  from  France  by  the  united  exertions 
of  the  mother  country  and  the  colonies  in  the  war  of  1756.  The 
claim  of  the  United  States  to  the  free  navigation  of  the  St.  Lawrence 
was  of  the  same  nature  with  that  of  Great  Britain  to  the  navigation 
of  the  Mississippi,  as  recognized  by  the  7th  article  of  the  treaty  of 
Paris,  176.3,  when  the  north  and  lower  shores  of  that  river  were 
held  by  another  power.  The  claims,  whilst  necessary  to  the  L'nited 
States,  was  not  injurious  to  Great  Britain,  nor  could  it  violate  any 
of  her  just  rights. 

"  On  the  part  of  the  British  Government,  the  claim  was  considered 
as  involving  the  question  whether  o,  perfect  right  to  the  free  naviga- 
tion of  the  river  St.  Lawrance  could  be  maintained  according  to  the 
principles  and  practice  of  the  law  of  nations." 

"  The  liberty  of  passage  to  be  enjoyed  by  one  nation  through  the 
dominions  of  another  was  treated  by  the  most  eminent  writers  on 
public  law  as  a  qualified,  occasional  exception  to  the  paramount 
rights  of  property.  They  made  no  distinction  between  the  right  of 
passage  by  a  river,  flowing  from  the  possessions  of  one  nation 
through  those  of  another,  to  the  ocean,  and  the  same  right  to  be  en- 


CHAP.  I.]      THE   NAVIGATION    OF   THE   ST.  LAWUENCE.  o7 

joyed  by  means  of  any  highway,  whether  of  land  or  water,  generally 
accessible  to  the  inhabitants  of  the  earth.  The  right  of  passage, 
then,  nnist  liold  good  for  other  pnrposes,  besides  those  of  trade, — for 
objects  of  war  as  well  as  for  objects  of  peace, — for  all  nations,  no 
less  than  for  any  nation  in  particular,  and  be  attached  to  artificial 
as  well  as  to  natural  highways.  The  principle  could  not,  therefore, 
be  insisted  on  by  the  American  Government,  unless  it  was  prepared 
to  api)ly  the  same  principle  by  reciprocity,  in  favor  of  British  sub- 
jects, to  the  navigation  of  the  Mississi[)[)i  and  the  Hudson,  access 
to  which  from  Canada  might  be  obtained  by  a  few  miles  of  land- 
carriage,  or  by  the  artificial  communications  created  by  the  canals 
of  New  York  and  Ohio.  Hence  the  necessity  which  has  been  felt 
by  the  writers  on  public  law,  of  controlling  the  operation  of  a  prin- 
ciple so  extensive  and  dangerous,  by  restricting  the  right  of  transit 
to  purposes  of  innocent  nt'ility,  to  be  exclusively  determined  by  the 
local  sovereign. 

"  Hence  the  right  in  question  is  termed  by  them  an  imperfect 
right.  But  there  was  nothing  in  these  writers,  or  in  the  stipulations 
of  the  treaties  of  Vienna,  respecting  the  navigation  of  the  great 
rivers  of  Germany,  to  countenance  the  American  doctrine  of  an 
absolute,  natural  right.  These  stipulations  were  the  result  of  mu- 
tual consent,  founded  on  consideration  of  mutual  interest  growing 
out  of  the  relative  situation  of  the  different  states  concerned  in  this 
navigation. 

"  The  same  observation  would  apply  to  the  various  conventional 
regulations,  which  had  been,  at  ditferent  periods,  applied  to  the 
navigation  of  the  river  Mississippi. 

"As  to  any  supposed  right  derived  from  the  simultaneous  acquisi- 
tion of  the  St.  Lawrence  by  the  British  and  American  people,  it 
could  not  be  allowed  to  have  survived  the  treaty  of  1783,  by  which 
the  independence  of  the  United  States  was  acknowledged,  and  a  par- 
tition of  the  British  dominions  in  North  America  was  made  between 
the  new  government  and  that  of  the  mother  country. 

"  To  this  argument  it  was  replied,  on  the  part  of  the  United 
States,  that,  if  the  St.  Lawrence  were  regarded  as  a  strait  connect- 
ing navigable  seas,  as  it  ought  properly  to  be,  there  would  be  less 
controversy.  The  principle  on  which  the  right  to  navigate  straits 
depends,  is,  that  they  are  accessorial  to  those  seas  which  they  unite, 
and  the  right  of  navigating  which  is  not  exclusive,  but  common  to 
all  nations ;  the  right  to  navigate  the  seas  drawing  after  it  tliat  of 
passing  the  straits.  The  United  States  and  Great  ]]ritain  have 
between  them  the  exclusive  right  of  navigating  the  lakes.  The  St. 
Lawrence  connects  them  with  the  ocean.     "  The  right  to  navigate 


38  STATES.  [pAr.T  I. 

both  (the  lakes  ana  the  ocean)  inchides  that  of  passing  from  one  to 
the  other  through  the  natural  hnk.  Was  it  then  reasonable  or 
just  that  one  of  the  two  co-proprietors  of  the  lakes  should  altogether 
exclude  his  associate  from  the  use  of  a  common  bounty  of  natui'e, 
necessary  to  the  full  enjoj'ment  of  them?  The  distinction  bet^A'een 
the  right  of  passage,  claimed  by  one  nation  through  the  territories 
of  another,  on  land,  and  that  on  navigable  water,  though  not 
always  clearly  mai-ked  by  the  writers  on  public  law,  has  a  manifest 
existence  in  the  nature  of  things.  In  the  former  case,  the  passage 
can  hardly  ever  take  place,  especially  if  it  be  of  numerous  bodies, 
without  some  detriment  or  inconvenience  to  the  state  whose  terri- 
tory is  traversed.  15ut  in  the  case  of  a  passage  on  water  no  such 
injury  is  sustained. 

"  The  American  government  did  not  mean  to  contend  for  any  prin- 
ciple the  benefit  of  which,  in  analogous  circumstances,  it  would  deny 
to  Great  Britain.  If,  therefore,  in  the  further  progress  of  discovery,  a 
connection  should  l)e  developed  between  the  Mississippi  river  and 
Upper  Canada,  similar  to  that  which  exists  between  the  United  ^States 
and  the  St.  Lawrence,  the  American  government  would  be  always 
ready  to  apply,  in  respect  to  the  Mississippi,  the  same  principles  it 
contended  for  in  respect  to  the  St.  La\vrence.  But  the  case  of  rivers, 
which  lise  and  debouch  altogether  within  the  limits  of  the  same  na- 
tion, ougbt  not  to  be  confounded  with  those  which,  having  their 
sources  and  navigable  portions  of  their  streams  in  states  above, 
finally  discharge  themselves  within  the  limits  of  other  states  below. 
In  the  former  case,  the  question  as  to  opening  the  navigation  to 
other  nations  depended  upon  the  same  considerations  which  might 
influence  the  regtilation  of  other  commercial  intercourse  with  for- 
eign states,  and  was  to  be  exclusively  determined  by  the  local  sover- 
eign. But  in  respect  to  the  latter  the  free  navigation  of  the  river  was 
a  natural  right  in  the  upper  inhabitants,  of  which  they  could  not  be 
entirely  deprived  b}^  the  arbitrary  caprice  of  the  lower  state.  Xor 
was  the  fact  of  stibjecting  the  use  of  this  right  to  treaty  regulations, 
as  was  proposed  at  Vienna  to  be  done  in  respect  to  the  navigation  of 
tlie  European  rivers,  sufficient  to  prove  that  the  origin  of  the  right 
was  conventional  and  not  natural.  It  often  happened  to  be  highly 
convenient,  if  not  sometimes  indispensable,  to  avoid  controversies  by 
prescribing  certain  rules  for  the  enjoyment  of  a  natural  right.  The 
law  of  nature,  though  sufficiently  intelligible  in  its  great  outlines  and 
general  })urposes,  docs  not  always  reach  every  minute  detail  which 
is  called  for  by  the  complicated  wants  and  varieties  of  modern  navi- 
gation and  commerce. 

"Hence  the  right  of  navigating  the  ocean  itself,  in  many  instances, 


CHAP.  I.]      THE   NAVIGATION    OF    THE    ST.  LAWliENCE.  89 

principally  incident  to  a  state  of  war,  is  subjected,  l)y  innmnerable 
treaties,  to  various  regulations.  These  regulations — the  transac- 
tions of  Vienna,  and  other  analogous  stipulations — should  be  regarded 
only  as  the  spontaneous  homage  of  man  to  the  paramount  Law-giver 
of  the  universe,  by  delivering  his  great  works  from  the  artificial 
shackles  and  seliish  contrivances  to  which  they  have  been  arbitrarily 
and  unjustly  sul)jected." 

[By  the  reciprocity  treaty  of  1854,  the  citizens  and  inhabitants  of 
the  United  States  w^ere  permitted  to  navigate  the  river  St.  Lawrence 
and  the  Canadian  canals  betw^een  the  great  lakes  and  the  .Vtlantic 
Ocean  ;  and  British  subjects  were  granted  the  right  to  navigate  Lake 
Michigan.     This  treaty  was  abrogated  in  18GG. 

The  treaty  of  Washington  of  May  8,  1871,  provides  as  follows  : 

ARTICLE  XX YL 

"  The  navigation  of  the  river  St.  Lawrence,  ascending  and  de- 
scending, from  the  forty -fifth  parallel  of  north  latitude,  where  it  ceases 
to  form  the  boundary  between  the  two  countries,  from,  to,  and  into 
the  sea,  shall  forever  remain  free  and  open  for  the  purposes  of 
commerce  to  the  citizens  of  the  United  States,  subject  to  any  laws 
and  regulations  of  Great  Britain,  or  of  the  Dominion  of  Canada,  not 
mconsistent  with  such  privilege  of  free  navigation. 

"The  navigation  of  the  rivers  Yukon,  Porcuphie,  and  Stikine, 
ascending  and  descending,  from,  to,  and  into  the  sea,  shall  forever 
remain  free  and  open  for  the  purposes  of  commerce  to  the  subjects  of 
Her  Britannic  Majesty  and  to  the  citizens  of  the  United  States,  sub- 
ject to  any  laws  and  regulations  of  either  country  witliin  its  own 
territory,  not  inconsistent  with  such  privilege  of  navigation." 

ARTICLE   XXYII. 

"  The  Government  of  Her  Britannic  Majesty  engages  to  urge  upon 
the  Government  of  the  Dominion  of  Canada  to  secure  to  the  citizens 
of  the  United  States  the  use  of  the  Welland,  St.  Lawrence,  and  other 
canals  in  the  Dominion  on  terms  of  equality  with  the  inhabitants  of 
the  Dominion ;  and  the  Government  of  the  Ignited  States  engages 
that  the  subjects  of  Her  Britannic  Majesty  shall  enjoy  the  use  of 
the  St.  Clair  Flats  canal  on  terms  of  equality  with  the  inhabitants 
of  the  United  States,  and  further  engages  to  urge  upon  the  state 
governments  to  secure  to  the  subjects  of  Her  Britannic  Majest)'"  the 
use  of  the  several  state  canals  connected  with  the  navigation  of  the 
lakes  or  rivers  traversed  by,  or  contiguous  to  the  boundary  line 
between  the  possessions  of  the  high  contracting  parties,  on  terms 
of  equality  with  the  inhabitants  of  the  L'nited  States." 


40  STATES.  [PAKT    I. 

ARTICLE  XXVTIT. 

"  The  navigation  of  Lake  Michigan  shall  also,  for  the  term  of 
years  [ten]  mentioned  in  article  XXXIIL  of  this  treaty  be  free  and 
oi>en  for  the  luirposes  of  commerce  to  the  subjects  of  Her  Britannic 
Majesty,  subject  to  any  laws  and  regulations  of  the  United  States 
or  of  the  states  bordering  thereon  not  inconsistent  with  such  privi- 
lege of  free  navigation. — [F.  S.] 


THE  XAVIGATIOX  OF  EUROPEAX  RIVERS. 

{^nieatons  International  Law,  M  Ed.,  244.) 

By  the  treaty  of  Westphalia,  1G48,  confirmed  l)y  subsequent  treaties, 
*  *  *  the  navigation  of  the  river  Scheldt  was  closed  to  the  Belgic 
provinces,  in  favor  of  the  Dutch. 

The  forcible  opening  of  this  navigation  by  the  French  on  the 
occupation  of  Belgium  by  the  arms  of  the  French  Republic,  in  ITil'J, 
in  violation  of  these  treaties,  was  one  of  the  principal  ostensible 
causes  of  the  war  between  France  on  one  side,  and  Gi-eat  Britain  and 
Holland  on  the  other.  By  the  treaties  of  Vienna,  the  Belgic  provinces 
were  united  to  Holland  under  the  same  sovereign,  and  the  navigation 
of  the  Scheldt  was  i:)laced  on  the  same  footing  of  freedom  with  that 
of  the  Rhine  and  other  great  European  rivei's.  And  by  the  treaty 
of  1831,  for  the  separation  of  Holland  from  Belgium,  the  free  naviga- 
tion of  the  Scheldt  was,  in  like  manner,  sectired,  subject  to  certain 
duties,  to  be  collec^ted  by  the  Dutch  government.^ 

"  By  the  treaty  of  Vienna,  1815,  the  conunercial  navigation  of 
rivers  which  separate  different  states,  or  flow  through  their  respect- 
ive territories,  was  declared  to  be  entirely  free  in  their  whole  course, 
from  the  point  M'here  each  river  becomes  navigable  to  its  mouth ; 
provided  that  regulations  relating  to  the  police  of  the  navigation 
should  be  observed,  which  regulations  were  to  be  uniform,  and  as 
favorable  as  possil)le  to  the  commerce  of  all  nations. 

"  By  the  Annexe  XVI.  to  the  final  act  of  the  Congress  of  Vienna,  the 
free  navigation  of  the  Rhine  is  confirmed  '  in  its  whole  course,  from 
the  point  where  it  becomes  navigable  to  the  sea,  ascending  or 
descending;'  and  detailed  regulations  are  provided  respecting  the 
navigation  of  that  river,  and  the  Xeckar,  the  ]Mayn,  the  Moselle,  the 

1  By  the  treaty  of  May  12,  1803,  between  Belgium  and  the  Xcthcrlands,  the  King 
of  tlie  Xftherlands  renounces  the  Scliehlt  dues  for  17,141,040  floruis  to  be  paid  by 
Belgium.     See  Dana's  note  to  Whcaton.  p.  270. 


CHAP.  I.]  THE   SOUND   DUES.  4l 

Meuse,  and  the  Scheldt,  which  are  declared  in  like  manner  to  be  free 
from  the  point  where  each  of  these  rivers  becomes  navigable  to  its 
mouth.  Similar  regulations  respecting  the  free  navigation  of  the 
Elbe  were  established  among  the  powers  interested  in  the  commerce 
of  that  river,  by  an  act  signed  at  Dresden  the  12th  December,  1.S21. 
And  the  stipulations  between  the  different  powers  interested  in  the 
free  navigation  of  the  Vistula  and  other  rivers  of  ancient  Poland, 
contained  in  the  treaty  of  the  3d  jMay,  1815,  between  Austria  and 
Russia,  and  of  the  same  date  between  Russia  and  Prussia,  to  which 
last  Austria  subsequently  acceded,  are  confirmed  by  the  final  act  of 
the  Congress  of  Vienna.  The  same  treaty  also  extends  the  general 
principles  adopted  by  the  Congress  relating  to  the  navigation  of 
rivers  to  that  of  the  Po."  [The  Danube  was  declared  free  to  commerce, 
under  certain  restrictions,  by  the  treaty  of  Paris,  in  1856.  See 
further,  on  the  navigation  of  rivers,  Schuyler's  American  Dii)lomacy  ; 
Calvo's  International  Law,  4th  Ed.,  T.,  451-4G7  ;  Ilertslet's  Map  of 
Europe  by  Treaty  ;  Englehardt,  in  the  Revue  de  Droit,  International, 
vol.  XL,  pp.  363-381.  F.  8.]^ 


(b)  Straits. 
THE  SOUND  DUES. 

{WheatoJi's  hiternntlonal  Lnu\  M  Ed.,  2ol.) 

"  The  supremacy  asserted  by  the  king  of  Denmark  over  the  Sound 
and  the  two  Belts  which  form  the  outlet  of  the  Baltic  Sea  into  the 
ocean,  is  rested  by  the  Danish  public  jurists  upon  immemorial  pre- 
scription, sanctioned  by  a  long  succession  of  treaties  with  other 
powers.  According  to  these  writers,  the  Danish  claim  of  sovereignty 
has  been  exercised  from  the  earliest  times  beneficially  for  the  pro- 
tection of  commerce  against  pirates  and  other  enemies  by  means  of 
guard-ships,  and  against  the  perils  of  the  sea  by  the  establishment 
of  lights  and  land-marks.  The  Danes  continued  for  several  centuries 
masters  of  the  coasts  on  both  sides  of  the  Sound,  the  province  of 
Scania  not  having  been  ceded  to  Sweden  until  the  treaty  of  Roeskild,  in 
1658,  confirmed  by  that  of  1660,  in  which  it  was  stipulated  that  Sweden 

1  South  American  Elvers. — The  River  La  Plata,  witli  its  1)i-anolies  the  Parana 
and  the  Uruguay,  was  opened  to  general  commerce  during  I  he  period  from  isru  to 
1859,  and  the  Amazon,  during  that  from  1858  to  18(57.  (Schuyler's  American 
Diplomacy,  319-344.) 

African  Bivers.— By  act  of  the  conference  of  P>erlin,  1885,  the  principles  of  free 
navigation  were  extended  to  the  Congo  antl  the  Xiger. 


42  STATES.  [pAliT   L 

should  never  lay  claim  to  the  Sound  tolls  in  consequence  of  the  ces- 
sion, but  should  content  herself  with  a  compensation  for  keeping  up 
the  light-houses  on  the  coast  of  Scania.  The  exclusive  right  of  Den- 
mark was  recognized  as  early  as  1368,  by  a  treaty  with  the  Ilanseatic 
republics,  and  by  that  of  1490,  with  Henry  VII.,  of  England,  which 
forbids  P^nglisli  vessels  from  passing  the  Great  Belt  as  well  as  the 
Sound,  unless  in  case  of  unavoidable  necessity ;  in  which  case  they 
were  to  pay  the  same  duties  at  Wyborg,  as  if  they  Imd  passed  the 
Sound  at  Elsinore. 

"The  treaty  concluded  at  Spire,  in  1544,  with  the  Emperor 
Charles  Y.,  which  has  commonly  been  referred  to  as  the  origin,  or 
at  least  the  first  recognition,  of  the  Danish  claim  to  the  Sound  tolls, 
merely  stipulates,  in  general  terms,  that  the  merchants  of  the  Lov/ 
Countries  frequenting  the  ports  of  Denmark  should  pay  the  same 
duties  as  formerly. 

"The  treaty  concluded  at  Christianople,  in  1G45,  between  Den- 
mark and  the  United  Provinces  of  the  Xetherlands,  is  the  earliest 
convention  with  any  foreign  power  by  which  the  amount  of  duties 
to  be  levied  on  the  passage  of  the  Sound  and  Belts  was  definitely 
ascertained.  A  tariff  of  specific  duties  on  certain  articles  therein 
eimmerated  was  annexed  to  this  treaty,  and  it  was  stipulated  that, 
'  goods  not  mentioned  in  the  list  should  pay  according  to  mercan- 
tile usage,  and  what  has  been  practiced  from  ancient  times.' 

"  A  treaty  was  concluded  between  the  two  countries  at  Copen- 
hagen, in  1701,  by  which  the  obscurity  in  that  of  Christianople  as 
to  the  non-specified  articles,  was  meant  to  be  cleared  up.  By  the 
third  article  of  the  new  treaty  it  was  declared  that  as  to  the  goods 
not  specified  in  the  former  treaty,  '  the  Sound  dtities  are  to  be  paid 
according  to  tJieir  value  ; '  that  is,  they  are  to  be  vahied  accordintj 
to  the  place  from  lohence  they  come,  and  one  per  centum  of  their 
value  to  be  paid. 

"These  two  treaties  of  1645  and  1701,  are  consequently  referred  to 
in  all  subsequent  treaties,  as  furnishing  the  standard  by  which  the 
rates  of  these  dtities  are  to  be  meastired  as  to  privileged  nations. 
Those  not  primleged,  pay  according  to  a  more  ancient  tariff  for 
the  specified  articles,  and  one  and  a  quarter  per  centum  on  unspe- 
cified articles. 

"By  the  arrangement  concluded  at  London  and  Elsinore,  in  1841, 
between  Denmark  and  Great  Britain,  the  tariff  of  duties  levied  on 
the  passage  of  the  Sound  and  Belts  was  revised,  tlie  duties  on  non- 
enumerated  articles  were  made  specific,  and  others  reduced  in 
aujount,  whilst  some  of  the  abuses  which  had  crept  into  the  manner 
of  levymg  the  duties  in  general  were  corrected.     The  benefit  of  this 


CHAP.  I.]      THE   BOSPHORUS    AND   THE   DAltDANELLES.  43 

arrnngeraent,  which  is  to  subsist  for  the  term  of  ten  years,  has  l)eeu 
extended  to  all  other  nations  prioileged  by  treaty." 

[The  Sound  dues  became  so  great  a  burden  to  commerce  that 
active  opposition  to  them  finally  arose  both  in  Europe  and  America  ; 
and  the  right  of  Denmark  to  collect  them  Avas  warmly  disputed, 
especially  in  the  United  States.  Denmark  tlierefore,  in  1855,  sug- 
gested a  project  of  capitalizing  the  Sound  dues  ;  and  in  accordance 
with  this  suggestion,  a  European  Congress  met  at  Copenhagen,  in 
the  winter  of  185G,  and  concluded  a  treaty,  March  14,  1857,  by  which 
these  dues  were  forever  abolished,  in  consideration  "of  a  present 
payment  of  35,000,000  rix-dollars.  The  United  States  declined  to 
become  a  party  to  the  treaty,  because,  as  President  Pierce  said, 
"  Denmark  does  not  offer  to  submit  to  the  convention  the  question 
of  her  right  to  levy  the  Sound  dues."  And  furtlier  that  the  pi-op- 
osition  contemplated  a  political  result — "  the  balance  of  power 
among  the  governments  of  Europe."  The  United  States,  however, 
concluded  a  separate  treaty  with  Denmark,  April  11,  1857,  by  which 
717,829  rix-dollars  were  paid  to  Denmark,  in  consideration  of  her 
agreement  to  keep  up  lights,  buoys,  and  pilot  establishments,  thus 
avoiding  the  recognition  of  the  right  of  Denmark  to  collect  the  dues. 
See  Schuyler's  American  Diplomacy,  306 ;  11.  R.  Ex.  Doc,  Xo. 
108,  33d  Congress,  1st  Sess.  and  Senate  Ex.  Doc,  No.,  28,  35th  Cong., 
1st  Sess. — F.  S.] 


THE  BOSPHORUS  AND  THE  DARDANELLES. 

{Wheaton'' s  International  Law,  o(Z  Ed.,  230.) 

"  So  long  as  the  shores  of  the  Black  Sea  were  exclusively  pos- 
sessed by  Turkey,  that  sea  might  with  propriety  be  considered  a 
mare  dausum  ;  and  there  seems  no  reason  to  question  the  riglit  of 
the  Ottoman  Porte  to  exclude  other  nations  from  navigating  the 
passage  which  connects  it  with  the  Mediterranean,  both  shores  of 
this  passage  being  at  the  same  time  portions  of  the  Turkish  terri- 
tory ;  but  since  the  territorial  acquisitions  made  by  Russia,  and  the 
commercial  establishments  formed  by  her  on  the  shores  of  the 
Euxine,  both  that  empire  and  the  other  maritime  powers  have  be- 
come entitled  to  participate  in  the  connuerce  of  the  Black  Sea,  and 
consequently  to  the  free  navigation  of  the  Dardanelles  and  the 
Bos])horus.  This  right  was  expressly  recognized  by  the  seventh 
article  of  the   treaty  of  Adrianople,  concluded   in   1829,  between 


4-i  STATES.  [part   I. 

Kussia  and  the  Porte,  both  as  to  IJussian  vessels  and  those  of  other 
Euiopean  States  in  amity  with  Turkey. 

"  The  right  of  foreign  vessels  to  navigate  the  interior  waters  of 
Turkey,  which  connect  the  Black  Sea  with  the  Mediterranean  does 
not  extend  to  ships  of  war.  Tlie  ancient  rule  of  the  Ottoman 
]Mni)ire,  estabhshed  for  its  own  security,  by  which  the  entry  of  for- 
eign vessels  of  war  into  the  canal  of  Constantinople,  including  the 
strait  of  the  Dardanelles  and  tliat  of  the  Black  Sea,  has  been  at 
all  times  prohibited,  was  expressly  recognized  by  the  treaty  con- 
cluded at  London  the  13th  July,  1841,  between  the  five  great 
European  powers  and  the  Ottoman  Porte. 

"  By  the  second  article,  *  *  *  the  Sultan  reserved  the  faculty  of 
granting,  as  heretofore,  firmans  allowing  the  passage  to  light  armed 
vessels  employed,  according  to  usage,  in  the  service  of  the  diplo- 
matic legations  of  friendly  powers." 

[•'By  the  treaty  of  Paris  in  1850,  as  modified  by  the  treaty  Lon- 
don hi  isTl,  the  Black  Sea  was  thrown  open  to  merchant  vessels  of 
all  nations ;  but  the  streets  are  closed  to  ships  of  war,  except  that 
the  Sultan  has  the  faculty  of  opening  them  in  time  of  peace  to  the 
war  vessels  of  friendly  and  allied  powers  in  case  he  deems  it  neces- 
sary for  carrying  out  the  stipulations  of  the  treaty  of  Paris.  The 
L'^nited  States  have  never  adhered  to  either  of  these  treaties,  and 
have  always  maintained  that  their  right  to  send  ships  of  war  into 
the  Black  Sea  cannot  be  legally  taken  from  them  by  any  arrange- 
ment concluded  by  European  powers  to  which  they  are  not  pai'ties. 
Xo  attempt,  however,  has  ever  been  made  to  exercise  these  rights. 
All  American  ships  of  war  have,  while  reserving  all  question  of 
right,  asked  permission  of  the  Porte  to  pass  the  Dardanelles." 
Schuyler's  American  Diplomacy,  317.] 


(r)  Jiays. 

REGINA  V.  CLTNNINGHAM. 

COUKT  FOR  CUOWN  CaSES  RESERVED,   1850. 

(J3e//\s  Crown  Cases,  T22.) 

Tlrfil,  that  a  crime,  conimitteil  nn  a  sliip  lyiiiL;  in  llie  Bristol  riiannol,  at  a  point 
wlieiv  it  is  niorti  than  ten  miles  wide,  is  oomniitted  within  tliti  bo  ly  of  the  adjoin- 
ing connty,  and  subject,  therefore,  to  the  jurisdiction  of  the  courts  of  said  county. 

This  was  an  action  upon  an  indictment  against  the  three  mates  of 
an  American  vessel,  for  feloni(»usly  wounding  one  of  their  seamen. 


CHAP.  I.]      CABLE   COMPANY    V.  TELEGRAPH    COMPANY.  4"> 

The  offense cluir<^ed  took  place  in  the  Penarth  IJtjads,  ninety  miles 
from  the  mouth  of  the  Bristol  Channel.  The  venue  Avas  (Glamorgan- 
shire— the  offense  took  place  three-quarters  of  a  mile  from  tlie  coast 
of  Glamorganshire,  at  a  spot  always  covered  by  the  tide,  but  a 
quarter  of  a  mile  from  a  place  which  is  left  di-y  Ijy  the  title. 

It  Avas  ten  miles  to  the  opposite  shore.  Tlie  exact  place  was 
between  Glamorganshire  and  an  island  called  the  Flat  Holms,  pai't 
of  the  county  of  Glamorganshire,  and  two  miles  inside  that  island. 

Counsel  for  the  prisoners  contended  that  the  offense  was  com- 
mitted on  the  high  seas — the  Crown  that  it  Avas  in  the  county  of 
Glamorgan. 

The  judgment  of  the  court  Avas  delivered  by  Cockburx,  C.  J. — 
"  In  this  case  Ave  are  of  opinion  that  the  conviction  is  right.  The 
only  question  Avith  Avhicli  it  becomes  necessary  for  us  to  deal  is 
Avhether  the  part  of  the  sea  on  Avhich  the  vessel  Avas  at  the  time 
Avhen  the  offense  Avas  committed,  forms  part  of  the  county  of  Gla- 
morgan /  and  Ave  are  of  opinion  that  it  does.  The  sea  in  question  is 
part  of  the  Bristol  Channel,  both  shores  of  Avhich  form  part  of  Eng- 
land and  Wales,  of  the  county  of  Somerset  on  the  one  side  and  the 
county  of  Glamorgan  on  the  other.  We  are  of  opinion  that,  looking 
at  the  local  situation  of  this  sea,  it  must  be  taken  to  belong  to  the 
counties  respectively  by  the  shores  of  Avhich  it  is  bounded ;  and  the 
fact  of  the  Holms,  betAveen  which  and  the  shore  of  the  county  of 
Glamorgan  the  place  in  question  is  situated,  having  always  been 
treated  as  part  of  the  parish  of  Cardiff  and  as  part  of  the  county  of 
Glamorgan,  is  a  strong  illustration  of  the  principle  on  Avhicli  Ave 
proceed,  namely,  that  the  Avhole  of  this  inland  sea  betAveen  the  coun- 
ties of  Somerset  and  Glamorgan  is  to  be  considered  as  Avithin  the 
counties,  by  the  shores  of  Avhich  its  several  parts  are  respectively 
bounded.  We  are,  therefore,  of  opinion  that  the  place  in  question  is 
Avithin  the  body  of  the  county  of  Glamorgan." 


THE  DIRECT  UNITED   STATES  CABLE  COMPANY  v.  THE 
ANGLO-AMERICAN  TELEGRAPH  COMPANY. 

Pkivy  Council,  1877. 

(Latu  Bejmrts,  2  Aj^p.  Cases,  394.) 

Eeld,  that  Conception  Bay,  in  Newfoundland,  which  is  something  over  fif- 
teen miles  wide,  and  forty  to  fifty  miles  long,  is  a  British  bay,  and  a  part  of  the 
territorial  waters  of  Newfoundland. 

This  suit  Avas  one  in  Avhichthe  Respondent  Company  had  obtained 


STATES.  [fAET  L 

an  injanction  against  the  Appellant  Company  i>r 
layiv.'^  a  t<frk:^raph  cuCiAe  in  Conception  Bay,  I>-r 
tlierfei;>y  infrjugin:^  rights  gr^inted  b}'  the  legislature 
the  Respondent  Company,    The  Appellant  Company  r^i  that 

Conception  Bay  (which  is  rather  more  than  twenty  11.^  -    .  ^.^e  at  ita 
fuou;';!  aisd  runs  iniand  lj»fetween  forty  and  fifty  miles)  was  not  Brit- 
ish territorial  waters,  hut  apart  of  the  high  seas.     11.  rad 
cahles  complained  of  were  laid  within  tl.  - '    ■•  ^t  a  dista;. . , 
than  three  miles  from  the  shore, 

The  judgment  was  deliverefl  i>y  Lord  Di,.»  ij>i  i:x,  v' 
ing  the  cases  under  the  Common  Law  of  England  co:.  .    oS- 

ing  from  the  Common  Law  of  England,  to  the  general  law  of  nations^ 
as  indicated  hy  the  text  write: 

find  an  uijiversal  agr**ment  tL  .  I- 

locked,  belong  to  the  territory  of  the  nation  which  possesses  the 
shores  round  them, but  no  agreement  as  *  —■  *  '  -  -  ■  *  ■* er- 
mine what  is  "  a  bay  "  for  this  jjurpose. 

"  It  aeema  generally  agreed  that  where  the  . 

skms  of  the  l^ay  are  such  as  to  show  that  t;-;  ..- ._  ..- ; 

adjoining  coasts  also  occupies  the  bay.  it  is  part  of  t.  y.  and 

with  this  idea,  most  of  the  writers  r?t  reici  -i- 

bility  from  the  shore  as  tfs^  *— *     : ;  some  ..  .._.  .„-g, 

therefore,  a  width  of  one  c  .  jt  from  shore  to  shore,  or  three 

miles:  some  a  cannon-  or  six  raOes  ;  some  an 

arbitrary  distance  of  :  .ese  are  rules  which,  if 

adopted,  would  exclude  Conception  Bay  from  the  territory  of  Xew- 
foumlland,  butaLsowr     -  •  •        -  -  '  "    rtt 

Britain,  that  part  of  t..  /  ■^- 

ham  was  decided  to  be  in  the  county  of  Glamorgan.  On  the  other 
hand,  the  diplomatist-     -  -      t-.  .  .-.  ....  .       :     1-    ,       :.     .3  --,.-. 

riiorial  jurisdiction  ov 
Kent,  in  his  Comment 

of  his  authority  to  this  •,. ^.  ^..-^ -....,-....... ..  .. 

it  altogether  unreasonable.    It  does  not  appear  to  their  Lr 
that  jurists  and  text- writers  i. 

dimensions  and  configui-ation. .._,.,-- 

tions,  would  lead  to  the  conclusion  that  a  bay  is  or  is  not  a  part  of 
t;  ry  of  the  state  p  '''.<.< 

ti'  :  they  can  find,  ^         al 

determination-  If  it  was  necessary  in  this  case  to  lay  down  a  mle 
t:.         "     '        '     '  •  "  '  •         \        ■     .  from 

a.  -ary  so 

to  do.    It  seems  t  :  ict,  tiie  British  Govern- 


CHAI'.   I.J  MANCHESTEU    V.  MASSACHUSETTS.  47 

ment  has  for  a  long  period  exercised  dominion  over  this  hay,  and 
that  their  chiiiii  has  been  acquiesced  in  by  other  natii)iis,  so  as  to 
show  that  the  bay  has  been  for  a  long  time  occui)ied  exelusively  by 
Great  Britain,  a  circumstance  which  in  the  tribunals  of  any  country 
would  be  very  important.  And  moreover  (which  in  a  British  tri- 
bunal is  conclusive),  the  British  Legislature  has  by  acts  of  Parliament 
declared  it  to  be  part  of  the  British  territory,  and  part  of  the  country 
made  subject  to  the  Legislature  of  Xewfoundland, 

"  Their  Lordships,  therefore,  will  humbly  recommend  to  Iler 
]\I;ijt'sty  tliat  tlie  order  of  the  Supreme  Court  of  Xewfoundland  be 
iitiirmed  and  that  this  appeal  be  dismissed  with  costs."  ^ 


.ALVXCIIESTEU  v.  MASSACHUSETTS. 

SupREMJo  Court  of  the  L'xiteo  States,  1890. 

(i:]9  United  States  Reports,  240.) 

Manchester,  a  citizen  of  Rhode  Island  was  indicted  in  Massachusetts  for  taking 
fish  (Menhaden)  in  Buzzard's  Bay,  in  contravention  of  tlie  laws  of  Massachusetts 
regulating  the  fishery  in  that  bay.  Manchester  held  a  United  States  license  for 
the  Menhaden  fishery;  and  disputed  the  right  of  Massachusetts  to  any  jurisdiction 
over  such  fisheries. 

Held  that,  in  the  absence  of  legislation  by  Congress  on  this  subject,  the  States 
may  legally  make  regulations  for  the  fisheries  within  their  territorial  waters. 

Arthur  Manchester  was  charged  with  fishing  with  a  seine  in  Buz- 
zard's Bay,  within  the  jurisdiction  of  the  Commonwealth  of  3Iassa- 
chusetts.  The  complaint  is  founded  upon  an  act  of  the  Massachu- 
sett.s'  Legislature  (Laws  of  1^80,  c.  192),  entitled  "  An  act  for  the  pro- 
tection of  the  fisheries  in  Buzzard's  Bay,"  Section  I.  of  which  is  as 
follows : — 

"Xo  person  shall  draw,  set,  stretch  or  use  any  drag  net,  set  net  or 

^  The  Granrje  (I70o),  1  Op.  Att.-Gen.  .32.  In  the  case  of  the  British  ship  Grawje, 
captured  by  a  French  privateer  in  Delaware  Bay,  in  1793,  Attorney-General  Kan- 
ilolph  held  that  Delaware  Bay  formed  a  part  of  the  territorial  waters  of  the  Unit-d 
Slates,  and  was  therefore  neutral  ground.  lie  rested  his  arguments  mainly  upon 
the  fact  that  the  United  States  were  proprietors  of  the  lands,  on  both  sides  of  the 
bay.  Every  consideration  is  excluled,  "  how  far  the  spot  of  seiziu-e  was  capable 
of  being  defimded  by  the  United  States.  For,  although  it  will  not  be  conceded 
th:it  this  could  not  be  done,  yet  will  it  rather  appear,  that  the  mutual  rights  of  tlio 
States  of  New  Jersey  and  Delaware,  up  to  the  middle  of  the  river  (or  bay),  super- 
sede the  necessity  of  such  an  investigation." 

"  Xo.  The  corner-stone  of  our  claim  is,  that  the  United  States  are  proprietors 
of  the  lands  on  both  sides  of  the  Delaware,  from  its  head  to  its  entrance  into  the 
sea." 


4.3  STATES.  [PART  I. 

gill  net,  purse  or  sweep  seine  of  any  kind  for  taking  fish  anywhere 
in  the  waters  of  Buzzard's  Bay  within  the  jurisdiction  of  this  Com- 
monwealth, nor  in  any  harhor,  cove  or  bight  of  said  bay  except  as 
hereinafter  provided." 

Buzzard's  Bay,  at  its  mouth,  is  more  than  one  and  less  than  two 
marine  leagues  in  width — at  the  point  where  the  acts  complained  of 
took  place,  it  is  more  than  two  leagues  in  width,  and  the  nearest 
mainland  is  not  over  a  mile  and  a  quarter  away. 

The  defendant  requested  the  Court  of  Massachusetts  for  a  number 
of  rulings,  the  first  and  third  of  which  are  (1)  The  act  complained  of 
was  on  the  high  seas,  and  without  the  jurisdiction  of  Massachusetts. 
(3)  The  defendant  cannot  be  held  unless  the  act  complained  of  was 
done  and  committed  within  the  body  of  a  county,  as  understood  at 
common  law. 

These  instructions  were  refused,  and  the  court  told  the  jury  that 
if  they  found  that  the  place  where  the  acts  were  done  was  within  a 
marine  league  of  the  shore,  it  was  Avithin  the  jurisdiction  of  the 
Commonwealth. 

The  decision  being  against  the  defendant,  he  appealed  to  the 
Supreme  Court  of  the  United  States. 

3Ir.  Justice  Blatchford,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court : 

"  The  principal  contentions  in  this  court  on  the  part  of  the  defend- 
ant are  that,  although  Massachusetts,  if  an  independent  nation, 
could  have  enacted  a  statute  like  the  one  in  question,  which  her  own 
courts  would  have  enforced,  and  which  other  nations  would  have 
recognized,  yet  when  she  became  one  of  the  United  States,  she  sur- 
rendered to  the  general  government  her  right  of  control  over  the 
fisheries  of  the  ocean,  and  transferred  to  it  her  rights  over  the  waters 
adjacent  to  the  coast  and  a  part  of  the  ocean  ;  that,  as  by  the  Con- 
stitution, article  3,  section  2,  the  judicial  power  of  the  United  States 
is  made  to  extend  to  all  cases  of  admiralty  and  maritime  jurisdiction, 
it  is  consistent  only  with  that  view  that  the  rights  in  respect  of 
fisheries  should  be  regarded  as  national  rights,  and  be  enforced  only 
in  national  courts ;  that  the  proprietary  right  of  Massachusetts  is 
confined  to  the  body  of  the  county ;  that  the  offense  committed  by 
tlie  defendant  was  committed  outside  of  that  territory,  in  a  locality 
where  legislative  control  did  not  rest  upon  title  in  the  soil  and  waters, 
but  upon  rights  of  sovereignty  inseparably  connected  witli  national 
character,  and  which  were  intrusted  exclusively  to  enforcement  in 
admiralty  courts,  that  the  Commonwealth  has  no  jurisdiction  upon 
the  ocean  within  three  miles  of  the  shore;  that  it  could  not,  by  the 
statute  in  question,  oust  the  United  States  of  jurisdiction ;  that  fish- 


CHAP.  I.]  MANCHESTER    V.  MASSACHUSETTS.  49 

ing  upon  the  high  seas  is  in  its  nature  an  integral  part  of  national 
connnerce,  and  its  control  and  regulation  are  necessarily  vested  in 
Congress  and  not  in  the  individual  states  ;  that  Congress  has  mani- 
fested its  purpose  to  take  tlie  regulation  of  coast  fisheries,  in  the 
particulars  covered  by  the  Massachusetts  statute  in  question,  by  the 
joint  resolution  of  Congress  of  February  9,  1871  (16  Stat.  59.3), 
establishing  the  Fish  Connnission,  and  by  title  51  of  the  Revised 
Statutes,  entitled  '  Regulation  of  I'isheries,'  and  by  the  act  of  Feb- 
ruary 28, 1887,  c.  288  (24  Stat.  434),  relating  to  the  Mackerel  fisheries, 
and  by  acts  relating  to  bounties,  privileges,  and  agreements,  and  by 
granting  the  license  under  which  the  defendant's  steamer  was  fish- 
ing; and  that,  in  view  of  the  act  of  Congress  authorizing  such  license, 
no  statute  of  a  state  could  defeat  the  right  of  the  defendant  to  fish 
in  the  high  seas  under  it. 

"  By  the  Public  Statutes  of  Massachusetts,  part  1,  title  1,  c.  1,  sec- 
tions 1  and  2,  it  is  enacted  as  follows  :  Section  1.  '  The  territorial  limits 
of  this  Commonwealth  extend  one  marine  league  from  its  seashore 
at  low-water  mark.  When  an  inlet  or  arm  of  the  sea  does  not  exceed 
two  marine  leagues  in  width  between  its  headlands,  a  straight  line 
from  one  headland  to  the  other  is  equivalent  to  the  shore  line.'  Sec- 
tion 2.  '  The  sovereignty  and  jurisdiction  of  the  Commonwealth 
extend  to  all  places  within  the  boundaries  thereof,  subject  to  the 
rights  of  concurrent  jui-isdiction  granted  over  places  ceded  to  the 
United  States.'  The  same  Public  Statutes  part  1,  title  1,  c.  22,  sec- 
tion 1,  contain  the  following  provision:  'The  boundaries  of  coun- 
ties bordering  on  the  sea  shall  extend  to  the  line  of  the  Common- 
wealth, as  defined  in  section  one  of  chapter  one.'  Section  11  of  the 
same  chapter  is  as  follows :  'The  jurisdiction  of  counties  separated 
by  waters  within  the  jurisdiction  of  the  Commonwealth  shall  be 
concurrent  upon  and  over  such  waters.'  By  section  2  of  chapter 
196  of  the  acts  of  Massachusetts  of  1881,  it  is  provided  as  follows  : 
'Section  2.  The  harbor  and  land  commissioners  shall  locate  and 
define  the  courses  of  the  boundary  lines  between  adjacent  cities  and 
towns  bordering  upon  the  sea,  and  upon  arms  of  the  sea  from  high- 
water  mark  outward  to  the  line  of  the  Commonwealth,  as  defined  in 
said  section  one  [section  one  of  chapter  one  of  the  General  Statutes], 
so  that  the  same  shall  conform  as  nearly  as  may  be  to  the  course  of 
the  boundary  lines  between  said  adjacent  cities  and  towns  on  the 
land ;  and  they  shall  file  a  report  of  their  doings  with  suitable  plans 
and  exhibits,  showing  the  boundary  lines  of  any  town  by  them  located 
and  defined,  in  the  registry  of  deeds  in  which  deeds  of  real  estate 
situated  in  such  town  are  required  to  be  recorded,  and  also  in  the 
office  of  the  secretary  of  the  Commonwealth.' 
4    • 


50  STATES.  [part  I. 

"  The  report  of  the  Superior  Court  states  that  the  point  where  the 
defendant  was  using  the  seine  was  within  that  part  of  Buzzard's 
Bay  which  the  harbor  and  land  commissioners,  acting  under  tlie  pro- 
visions of  the  act  of  1881,  had,  so  far  as  they  were  capable  of  doing 
so,  assigned  to  and  made  part  of  the  town  of  Falmouth ;  that  the 
distance  between  the  headlands  at  the  mouth  of  Buzzard's  Bay  'was 
more  than  one  and  less  than  two  marine  leagues;'  that 'the  dis- 
tance across"  said  bay,  at  the  point  where  the  acts  of  the  defendant 
were  done,  is  more  than  two  marine  leagues,  and  the  opposite  points 
are  in  different  counties  ; '  and  that  '  the  place  where  the  defendant 
was  so  engaged  with  said  seine  was  about,  and  not  exceedmg,  one 
mile  and  a  quarter  from  a  point  on  the  shore  midway  from  the  north 
line  of '  the  to\\'n  of  Falmouth  '  to  the  south  line  '  of  that  town. 

"  Buzzard's  Bay  lies  wholly  within  the  territory  of  Massachusetts, 
having  Barnstable  county  on  the  one  side  of  it,  and  the  counties  of 
Bristol  and  Plymouth  on  the  other.  The  defendant  offered  evidence 
that  he  was  fishing  for  menhaden  only,  wi  th  a  purse  seine ;  that 
'the  bottom  of  the  sea  was  not  encroached  upon  or  disturbed; 
that  it  was  impossible  to  discern  objects  across  from  one  headland 
to  the  other  at  the  mouth  of  Buzzard's  Bay  ; '  and  that  the  steamer 
was  duly  enrolled  and  licensed  at  the  port  of  Newport,  Rhode  Island, 
under  the  laws  of  the  United  States,  for  carrying  on  the  menhaden 
fishery. 

"By  section  1  of  chapter  19G  of  the  laws  of  Massachusetts  of  1881, 
it  was  enacted  as  follows:  Section  1.  '  The  boundaries  of  cities  and 
towns  bordering  upon  the  sea  shall  extend  to  the  line  of  the  Common- 
wealth as  the  same  is  defined  in  section  one  of  chapter  one  of  the 
General  Statutes.'  Section  1  of  chapter  1  of  the  General  Statutes 
contains  the  provisions  before  recited  as  now  contained  in  the 
Public  Statutes,  chapter  1,  section  1,  and  chapter  22,  sections  1  and  11. 
Buzzard's  Bay  was  undoul)tedly  within  the  territory  described  in  the 
charter  of  the  Colony  of  New  Plymouth  and  the  Province  charter. 
By  the  definitive  treaty  of  peace  of  September  3,  178-3,  between  the 
United  States  and  Great  Britain  (8  Stat.  81),  His  Britannic  Majesty 
acknowledged  the  United  States  of  which  Massachusetts  Bay  was 
one,  to  be  free,  sovereign  and  independent  States,  and  declared  that 
he  treated  with  them  as  such,  and,  for  himself,  his  heirs  and 
successors,  relinquished  all  claims  to  the  government,  proprietary  and 
territorial  rights  of  the  same  and  every  part  thereof.  Therefore,  if 
Massachusetts  had  continued  to  be  an  independent  nation,  her 
boundaries  on  the  sea,  as  defined  by  her  statutes,  would  unquestion- 
ably be  acknowledged  by  all  foreign  nations,  and  her  right  to  con- 
trol the  fisheries  within  those  boundaries  would  be  conceded.     The 


CHAr.  I.]  MANCHESTER   V.  MASSACHUSETTS.  51 

limits  of  the  right  of  a  nation  to  control  the  fisheries  on  its  sea-coasts, 
and  in  the  bays  and  arms  of  the  sea  within  its  territory,  have  never 
been  placed  at  less  than  a  marhie  league  from  the  coast  on  the  o^ien 
sea  ;  and  bays  wholly  within  the  territory  of  a  nation,  the  headlands 
of  which  are  not  more  than  two  marine  leagues,  or  six  geographical 
miles,  apart,  have  always  been  regarded  as  a  part  of  the  territory  of 
the  nation  in  which  they  lie.  Proceedings  of  the  Halifax  Com- 
mission of  1877,  under  the  treaty  of  Waslnngton  (jf  May  8,1871. 
Executive  Document  No.  89,  45th  Congress,  2d  session.  Ho.  Keps., 
pp.  120,  121,  160. 

"  On  this  branch  of  the  subject  the  case  of  The  Qxeen  v.  Keyn^  2  Ex. 
D.  63,  is  cited  for  the  plaintiff  in  error ;  but  there  the  question  was 
not  as  to  the  extent  of  the  dominion  of  Great  Britain  over  the  open 
sea  adjacent  to  the  coast,  but  only  as  to  the  extent  of  the  existing 
jurisdiction  of  the  Court  of  Admiralty  in  England  over  offenses 
committed  on  the  open  sea  ;  and  the  decision  had  nothing  to  do  with 
the  right  of  control  over  fisheries  in  the  open  sea  or  in  bays  or  arms 
of  the  sea. 

"  In  all  the  cases  cited  in  the  opinions  delivered  in  Tlie  Queen  v. 
Keyn^  wherever  the  question  of  the  right  of  fishery  is  referred  to,  it 
is  conceded  that  the  control  of  fisheries,  to  the  extent  of  at  least  a 
marine  league  from  the  shore,  belongs  to  the  nation  on  whose  coast 
the  fisheries  are  prosecuted. 

"  In  Direct  IT.  S.  Cable  Co.  v.  An ylo- American  Tel.  Co..,  2  App.  Cas. 
394,  it  became  necessary  for  the  Privy  Council  to  determine  whether 
a  point  in  Conception  Bay,  Newfoundland,  more  than  three  miles 
from  the  shore,  was  a  part  of  the  territory  of  Newfoundland,  and 
within  the  jurisdiction  of  its  legislature.  The  average  width  of  the 
bay  was  about  fifteen  miles,  and  the  distance  between  its  headlands 
was  rather  more  than  twenty  miles;  but  it  was  held  that  Conception 
Bay  was  a  part  of  the  territory  of  Newfoundland,  because  the 
British  government  had  exercised  exclusive  dominion  over  it, 
with  the  acquiescence  of  other  nations,  and  it  had  been  declared 
by  act  of  Parliament  '  to  be  part  of  the  British  territory,  and 
part  of  the  country  made  subject  to  the  legislature  of  New- 
foundland.' 

"  We  think  it  must  be  regarded  as  established  that,  as  between 
nations,  the  minimum  limit  of  the  territorial  jurisdiction  of  a  nation 
over  tide-waters  is  a  marine  league  from  its  coast  ;  that  bays  wholly 
within  its  territory  not  exceeding  two  marine  leagues  in  width  at  the 
mouth  are  within  this  limit ;  and  that  included  in  this  territorial 
jurisdiction  is  the  right  of  control  over  fisheries,  whether  the  fish  be 
migratory,  free-swimming  fish,  or  free-moving  fish,  or  fish  attached  to 


52  STATES.  [part  I. 

or  embedded  in  the  soil.  The  open  sea  within  this  limit  is,  of  course, 
subject  to  the  common  right  of  navigation  ;  and  all  governments, 
for  the  purpose  of  self-protection  in  time  of  war  or  for  the  preven- 
tion of  frauds  on  its  revenue,  exercise  an  authorit}'  beyond  this  limit. 
Gould  on  Waters,  part  1,  c.  1,  §§  1-17,  and  notes;  Xeill  v.  Duke  of 
Devonshire,  8  App.  Cas.,  135  ;  Gcimrnell  v.  Commissioners,  3  Macq., 
419;  Jloicat  v.  McFee,  b  Sup.  Ct.  of  Canada,  66;  The  Queen  v. 
Cuhitt,  -l-l  Q.  B.  D.,  G22 ;  St.  46  and  47  Vict.  C,  22. 

'•  It  is  further  insisted  by  the  plaintiff  in  error,  that  control  of  the 
fisheries  of  Buzzard's  Bay  is,  by  the  constitution  of  the  United  States, 
exclusively  with  the  United  States,  and  that  the  statute  of  Massa- 
chusetts is  repugnant  to  that  Constitution  and  to  the  laws  of  the 
United  States.  *  *  * 

"Under  the  grant  by  the  Constitution  of  judicial  jwwer  to  the 
United  States  in  all  cases  of  admiralty  and  maritime  jurisdiction, 
and  under  the  rightful  legislation  of  Congress,  personal  suits  on 
maritime  contracts  or  for  maritime  torts  can  be  maintained  in  the 
state  courts ;  and  the  courts  of  the  United  States,  merely  by  virtue 
of  this  grant  of  judicial  power,  and  in  the  absence  of  legislation  hy 
Congress,  have  no  criminal  jurisdiction  whatever.  The  criminal 
jurisdiction  of  the  courts  of  the  United  States  is  wholly  derived  from 
the  statutes  of  the  United  States.  *  *  * 

"In  each  of  the  cases  of  United  States  v.  Bevans,  3  Wheat.,  336, 
and  of  CommomceaWi  v.  Peters,  12  Met.,  387,  the  place  where  the 
offense  was  committed  was  in  Boston  Harbor ;  and  it  was  held  to  be 
within  the  jurisdiction  of  ^Massachusetts,  according  to  the  meaning 
of  the  statutes  of  the  United  States  which  punished  certain  offenses 
committed  upon  the  high  seas  or  in  any  river,  haven,  basin  or  bay 
'out  of  the  jurisdiction  of  any  particular  state.'  The  test  applied 
in  Cornrnonii-ealth  v.  Peters,  which  was  decided  in  the  year  1847,  was 
that  the  place  was  within  a  bay  '  not  so  wide  but  that  persons  and 
objects  on  the  one  side  can  be  discerned  by  the  naked  eye  by  persons 
on  the  opposite  side,'  and  was  therefore  within  the  body  of  a  county. 
In  United  States y.  Bevaiis,  Marshall,  C.  J.,  said  :  'The  jurisdiction 
of  a  state  is  coextensive  with  its  territory ;  coextensive  with  its 
legislative  power.  The  place  described  is  unquestionably  within  the 
origmal  territory  of  Massachusetts.  It  is  then  within  the  jurisdiction 
of  Massachusetts,  unless  that  jurisdiction  has  been  ceded  to  the 
United  States.'  If  the  place  where  the  offense  charged  in  this  case 
was  committed  is  within  the  general  jurisdiction  of  Massachusetts, 
then,  according  to  the  principles  declared  in  Smith  v.  Jfarj/Iand,  the 
statute  in  question  is  not  repugnant  to  the  constitution  and  laws  of 
the  United  States. 


CHAr.  I.]  MANCHESTER    V.  MASSACHUSETTS.  53 

"It  is  also  contended  that  the  jurisdiction  of  a  state  as  between  it 
and  tlie  United  States  must  be  confined  to  the  body  of  counties ; 
tliat  counties  must  be  defined  according  to  tlie  customary  English 
usage  at  the  time  of  tlie  adoption  of  the  Constitution  of  the  United 
States  ;  that  by  this  usage  counties  were  bounded  by  the  margin  of 
the  open  sea ;  and  that,  as  to  bays  and  arms  of  the  sea  extending 
into  the  land,  only  sucli  or  sucli  parts  were  included  in  counties  as 
were  so  narrow  that  objects  could  be  distinctly  seen  from  one  shore 
to  the  other  by  the  naked  eye.  But  there  is  no  indication  that  the 
customary  law  of  England  in  regard  to  the  boundaries  of  counties 
was  adopted  by  the  Constitution  of  the  United  States  as  a  nieasui'e 
to  determine  the  territorial  jurisdiction  of  the  states. 

"  The  extent  of  the  territorial  jurisdiction  of  Massachusetts  over  the 
sea  adjacent  to  its  coast  is  that  of  an  independent  nation  ;  and,  except 
so  far  as  any  right  of  control  over  this  territory  has  been  granted  to 
the  United  States,  this  control  remains  with  the  state.  In  United 
/States  V.  Bevans,  Marshall,  C.  J.,  in  the  opinion,  asks  the  following 
questions  :  '  Can  the  cession  of  all  cases  of  admiralt}^  and  maritime 
jurisdiction  be  construed  into  a  cession  of  the  waters  on  which  those 
cases  may  arise?  As  the  powers  of  the  respective  Governments 
now  stand,  if  two  citizens  of  Massachusetts  step  into  sliallow  water 
where  the  tide  flows,  and  fight  a  duel,  are  they  not  within  the  jurisdic- 
tion, and  punishable  l)y  the  laws  of  Massachusetts?'  The  statutes 
of  the  United  States  define  and  punish  but  few  offenses  on  the  high 
seas,  and,  unless  other  offenses  when  committed  in  the  sea  near  the 
coast  can  be  punished  by  the  states,  there  is  a  large  immunity  from 
punishment  for  acts  which  ought  to  be  punishable  as  criminal. 
Within  what  are  generally  recognized  as  the  territorial  limits  of 
states  by  the  law  of  nations,  a  state  can  define  its  boundaries  on  the 
sea  and  the  boundaries  ox  its  counties  ;  and  by  this  test  the  Common- 
wealth of  Massachusetts  can  include  Buzzard's  Bay  within  the  limits 
of  its  counties. 

"  The  statutes  of  Massachusetts,  in  regard  to  bays  at  least,  make 
definite  boundaries  which,  before  the  passage  of  the  statutes,  were 
somewhat  indefinite  ;  and  Bhode  Island  and  some  other  states  have 
passed  similar  statutes  defining  their  boundaries.  Public  Statutes 
of  Rhode  Island,  1882,  c.  1,  §§  1,  2;  c.  3,  §  G;  Gould  on  Waters,  § 
16  and  note.  The  waters  of  Buzzard's  Bay  are,  of  course,  navigable 
waters  of  the  United  States,  and  the  jurisdiction  of  Massachusetts 
over  them  is  necessarily  limited,  Commonwealth  v,  Kinr/,  1.50 
Mass.,  221 ;  but  there  is  no  occasi(jn  to  consider  the  power  of  the 
United  States  to  regulate  or  control,  either  by  treaty  or  legisla- 
tion, the  fisheries  in  these  waters,  because  there  are  no  existing 


54  STATES.  [PAIIT  I. 

treaties  or  acts  of  Congress  which  relate  to  the  menhaden  fisheries 
in  such  a  bay. 

"  The  rights  granted  to  British  subjects  by  the  treaties  of  June  5, 
1854,  and  3Iay  S,  1871,  to  take  fish  upon  the  shores  of  the  United 
States,  liad  expired  before  tlie  statute  of  Massachusetts  (St.  1886, 
c.  192)  was  passed,  which  the  defendant  is  charged  with  violating. 
The  Fish  Commission  was  instituted  '  for  the  pjrotection  and  pres- 
ervation of  the  food  fishes  of  the  coast  of  the  United  States.' 

"Title  51  of  the  Eevised  Statutes  relates  solely  to  food  fisheries, 
and  so  does  the  Act  of  1888.  Xor  are  we  referred  to  any  decision 
which  holds  that  the  other  acts  of  Congress  alluded  to  apply  to  fish- 
eries for  menhaden,  which  is  found  as  a  fact  in  this  case  not  to  be  a 
food  fish,  and  to  be  only  valuable  for  the  purpose  of  bait  and  of 
manufacture  into  fish  oil. 

'•  The  statute  of  Massachusetts  which  the  defendant  is  charged  Avith 
violating  is,  in  terms,  confined  to  waters,  '  within  the  jurisdiction  of 
this  commonwealth  ; '  and  it  was  evidently  passed  for  the  preser- 
vation of  the  fish,  and  makes  no  discrimination  in  favor  of  citizens 
of  Massachusetts  and  against  citizens  of  other  states.  If  there  be  a 
liberty  of  fishing  for  swimming  fish  m  the  na\igable  waters  of  the 
United  States  common  to  the  inhabitants  or  the  citizens  of  the  United 
States,  upon  which  we  express  no  opinion,  the  statute  may  well  be 
considered  as  an  impartial  and  reasonable  regulation  of  this  liberty ; 
and  the  subject  is  one  which  a  State  may  well  be  permitted  to  regu- 
late within  its  territory,  m  the  absence  of  any  regulation  by  the 
United  States.  The  preservation  of  fish,  even  although  they  are  not 
used  as  food  for  human  beings,  but  as  food  for  other  fish  which  are 
so  used,  is  for  the  common  benefit ;  and  we  are  of  opinion  that  the 
statute  is  not  repugnant  to  the  constitution  and  the  laws  of  the 
United  States. 

"  It  may  be  observed  that  §  4398  of  the  Revised  Statutes  (a  re-enact- 
ment of  §  4  of  the  joint  resolution  of  February  9,  1871),  provides  as 
follows,  in  regard  to  the  Commission  of  Fish  and  Fisheries :  '  The 
commissioner  may  take  or  cause  to  be  taken  at  all  times,  in  the 
waters  of  the  sea-coast  of  the  United  States,  where  the  tide  ebbs  and 
flows,  and  also  in  the  waters  of  the  lakes,  such  fisii  or  specimens 
thereof  as  may  in  his  judgment,  from  time  to  time,  be  needful  or 
proi^er  for  the  conduct  of  his  duties  ;  any  law,  custom  or  usage  of  any 
state  to  the  contrary  notwithstanding.'  This  enactment  may  not 
improperly  be  construed  as  suggesting  that,  as  against  the  law  of  a 
state,  the  Fish  Commissioner  might  not  otherwise  have  the  right  to 
take  fish  in  places  covered  l)y  the  State  law. 

"  The  pertinent  observation  may  be  made  that,  as  Congress  does 


CHAr.  I.]  THE   QUEEN    V.  KEYN.  55 

not  assert,  by  legislation,  a  right  to  control  pilots  in  the  bays, 
inlets,  rivers,  harbors,  and  ports  of  the  United  States,  but,  leaves  the 
regulation  of  that  matter  to  the  states,  Cooleij  v.  Board  of  War- 
dens, 12  How.,  299,  so  if  it  does  not  assert  by  affiraiative  legislation  its 
right  or  will  to  assume  the  control  of  menhaden  fisheries  in  such 
bays,  the  right  to  control  such  fisheries  must  remam  with  the  State 
which  contains  such  bays. 

"  We  do  not  consider  the  question  whether  or  not  Congress  would 
have  the  right  to  control  the  menhaden  fisheries  which  the  statute 
of  Massachusetts  assumes  to  control ;  but  we  mean  to  say  only  that 
as  the  right  of  control  exists  in  the  State  in  the  absence  of  the  af- 
firmative action  of  Congress  taking  such  control,  the  fact  that  Con- 
gress has  never  assumed  the  control  of  such  fisheries  is  persuasive 
evidence  that  the  right  to  control  them  still  remains  in  the  State."  ^ 

iln  the  case  of  Dunham  v.  Lainphere,  1855,  3  Gray,  268,  before  the  Supreme  Court 
of  Massachusetts,  Shaw,  C.  J.,  said:  "We  suppose  the  rule  to  be  that  those  limits 
extend  a  marine  league,  or  three  geograi^hical  miles  from  the  shore  ;  and  in  ascer- 
taining the  line  of  shore  this  limit  does  not  follow  each  narrow  inlet  or  arm  of  the 
sea,  but  when  the  inlet  is  so  narrow  that  persons  and  objects,  can  be  discerned 
across  it  by  the  naked  eye,  the  line  of  territorial  jurisdiction  stretches  across  from 
one  headland  to  the  other  of  such  inlet." 


(d)  JIarginal  Seas. 
THE  QUEEN  v.  KEYN. 

Court  of  Crowx  Cases  Reserved,  1876. 
(L.  R.,  2  Exchequer  Dlvinon,  63.) 

History  of  the  development  of  the  rule  fixing  the  limit  of  territorial  waters  at 
three  miles. 

A  foreigner,  sailing  along  the  English  coast,  within  this  three-mile  zone,  commits 
an  offense  against  an  English  subject.  Held,  that  he  was  not  subject  to  the  juris- 
diction of  the  Admiralty,  nor  its  successor  the  Central  Criminal  C^ourt,  in  the  ab- 
sence of  an  act  of  Parliament  expressly  conferring  such  jurisdiction. 

The  prisoner  was  indicted  at  the  Central  Criminal  Court  for  the 
manslaughter  of  Jessie  Dorcas  Young  on  the  high  seas,  and  within 
the  jurisdiction  of  the  Admiralty  of  England.  The  deceased  was  a 
passenger  on  board  the  Strathcli/de,  a  British  steamer  bound  from 
London  to  Bombay.  This  vessel,  when  one  and  nine-tenths  of  a 
mile  from  Dover  pier-head,  and  within  two  and  a  half  miles  from 
Dover  beach,  was  run  down  and  sunk  by  the  Franconia^  a  German 


56  STATES.  [PAET  1. 

steamer.  In  the  collision,  the  deceased  woman  was  drowned,  and 
the  prisoner,  the  captain  of  the  Franconia,  is  convicted  of  man- 
slaughter; but  a  question  of  h\\\  is  reserved. 

An  objection  was  taken  on  the  part  of  the  prisoner  that,  inasmuch 
as  he  was  a  foreigner,  in  a  foreign  vessel,  on  a  foreign  voyage,  sail- 
ing upon  tlie  high  seas,  he  was  not  subject  to  the  jurisdiction  of  any 
court  in  this  country. 

The  Crown  contends  that  inasnuich  as,  at  the  time  of  tlie  collision, 
both  vessels  Avere  within  the  distance  of  three  miles  from  the 
English  shore,  the  offense  was  committed  within  the  realm  of  Eng- 
land, and  is  triable  by  the  English  court. 

The  case  was  argued  before  Cockburn,  C.  J.,  Lord  Coleridge,  C.  J., 
Kelly,  C.  B.,  Sir  R.  Fhillimore,  Bramwell,  Pollock,  and  Amphlett, 
B.  B.,  Lush,  Brett,  Grove,  Denman,  Archibald,*  Field  and  Lindley,  JJ. 

CocKBURx,  C.  J ; —  "  The  question  is,  whether  the  accused  is 
amenable  to  our  law,  and  whether  there  was  jurisdiction  to  try  him  ? 

"  The  legality  of  the  conviction  is  contested,  on  the  ground  that 
the  accused  is  a  foreigner ;  that  the  Franconia^  the  ship  he  com- 
manded, was  a  foreign  vessel,  sailing  from  a  foreign  port,  bound  on 
a  foreign  voyage ;  that  the  alleged  offense  was  committed  on  the 
high  seas.  Under  these  circumstances,  it  is  contended  that  the 
accused,  though  he  may  be  amenable  to  the  law  of  his  own  country, 
is  not  capable  of  being  tried  and  punished  by  the  law  of  England. 

"  The  facts  on  which  this  defense  is  based  are  not  capable  of 
being  disputed ;  but  a  twofold  answer  is  given  on  the  part  of  the 
prosecution: — 1st.  That,  although  the  occurrence  on  which  the 
charge  is  founded  took  place  on  the  high  seas  in  this  sense  that  tlu 
place  in  which  it  happened  was  not  within  the  bodj''  of  a  county,  it 
occurred  within  three  miles  of  the  English  coast ;  that  by  the  law  of 
nations,  the  sea,  for  a  space  of  three  miles  from  the  coast,  is  part 
of  the  territory  of  the  country  to  which  the  coast  belongs ;  that, 
consequently,  the  Franconia^  at  the  time  the  offense  was  committed, 
was  in  English  waters,  and  those  on  board  were  therefore  subject 
to  English  law. 

"  Secondly.  That,  although  the  negligence  of  which  the  accused  was 
guilty  occurred  on  b(jard  a  foreign  vessel,  the  death  occasioned  by 
such  negligence  took  place  on  board  a  British  vessel ;  and  that,  as 
a  British  vessel  is,  in  point  of  law  to  be  considered  British  territory, 
the  offense,  having  been  consummated  by  the  death  of  the  deceased 
in  a  British  ship,  must  be  considered  as  having  been  committed  on 
British  territory.  *  *  * 

"  According  to   the   general   law,  a  foreigner  who  is  not   resid- 
♦ArchibalJ,  J.,  died  after  the  agumeut  and  before  the  judgiueut  was  delherel. 


CHAP.  I.]  THE   QUEEN    V.  KEVN.  57 

ing  permanently  or  temporarily  in  l>ritish  territory,  or  on  board  a 
British  ship,  cannot  be  held  responsible  for  an  infraction  of  the  law 
of  this  country. 

"  Unless,  therefore,  the  accused,  Keyn,  at  the  time  the  offense  of 
which  he  has  been  convicted  was  committed,  was  on  Hritisli  territoiy 
or  on  board  a  British  ship,  he  could  not  be  pro})erly  brought  to  trial 
under  British  law,  in  the  absence  of  express  legislation.    *  *  * 

"  In  the  reign  of  Charles  II.,  Sir  Leoline  Jenkins,  then  the 
judge  of  the  Court  of  Admiralty,  in  a  charge  to  the  grand  jury  at  an 
Admiralty  sessions  at  the  Old  Bailey,  not  only  asserted  the  king's 
sovereignty  within  the  four  seas,  and  that  it  was  his  right  and 
province  '  to  keep  the  public  peace  on  these  seas  '—that  is,  as  Sir 
Leoline  expounds  it,  '  to  preserve  his  subjects  and  allies  in  their 
possessions  and  properties  upon  these  seas,  and  in  all  freedom  and 
security  to  pass  to  and  fro  on  them,  upon  their  lawful  occasions,' 
but  extended  this  authority  and  jurisdiction  of  the  King.  'To  pi'c- 
serve  the  public  peace  and  to  maintain  the  freedom  and  security 
of  navigation  all  the  world  over;  so  that  not  the  utmost  bound  of 
the  Atlantic  Ocean,  nor  any  corner  of  the  Mediterranean,  nor  any 
part  of  the  South  or  other  seas,  but  that  if  the  peace  of  God  and 
the  King  be  violated  upon  any  of  his  suV)jects,  or  upon  his  allies 
or  their  subjects,  and  the  offender  be  afterwards  brought  up  or 
laid  hold  of  in  any  of  Ilis  Majesty's  ports,  such  breach  of  the  peace 
is  to  be  inquired  of  and  tried  in  virtue  of  a  commission  of  oyer  and 
terminer  as  this  is,  in  such  county,  liberty,  or  place  as  His  Majesty 
shall  please  to  direct — so  long  an  arm  hath  God  by  the  laws  given  to 
his  vicegerent  the  King.'  *  *  * 

"  Venice,  in  like  manner,  laid  claim  to  the  Adriatic,  Genoa  to  the 
Ligurian  Sea,  Denmark  to  a  portion  of  the  North  Sea. 

"  The  Portuguese  claimed  to  bar  the  ocean  route  to  India  and  the 
Indian  Seas  to  the  rest  of  the  world,  Avhile  Spain  made  the  like 
assertion  with  reference  to  the  West. 

"All  these  vain  and  extravagant  pretensions  have  long  since  given 
way  to  the  influence  of  reason  and  common  sense. 

"  If,  indeed,  the  sovereignty  thus  asserted  had  a  real  existence, 
and  could  now  be  maintained,  it  would  of  course,  independently  of 
any  question  as  to  the  three-mile  zone,  be  conclusive  of  tlie  present  case. 
But  the  claim  to  such  sovereignty,  at  all  times  unfounded,  has  long 
since  been  abandoned.  No  one  would  now  dream  of  asserting  that 
the  sovereign  of  these  realms  has  any  greater  right  over  the  surround- 
ing seas  than  the  sovereigns  on  the  opposite  shores  ;  or  that  it  is  the 
especial  duty  and  privilege  of  the  Queen  of  Great  Britain  to  keep  the 
peace  in  these  seas;  or  that  the  Court  of  Admiralty  coidd  try  a 


68  STATES.  [part  I. 

foreigner  for  an  offense  committed  in  a  foreign  vessel  in  all  parts  of 
the  Channel. 

"  Xo  writer  of  our  clay,  except  Mr.  Chitt}'  in  his  treatise  on  the 
prerogative,  has  asserted  the  ancient  doctrine.  Blackstone,  in  his 
chapter  on  the  prerogative  in  the  Commentaries,  while  he  asserts 
that  the  narrow  seas  are  part  of  the  realm,  puts  it  only  on  the  gromid 
that  the  jurisdiction  of  the  Admiralty  extends  over  these  seas. 

"  He  is  silent  as  to  anj-  jurisdiction  over  foreigners  within  them. 
The  concensus  of  jurists,  which  has  been  so  much  insisted  on  as 
authority,  is  perfectly  unanimous  as  to  the  non-existence  of  any  such 
jurisdiction.  Indeed,  it  is  because  this  claim  of  sovereignty  is 
admitted  to  be  untenable  that  it  has  been  fomid  necessary  to  resort 
to  the  theory  of  the  three-mile  zone. 

"  It  is  in  vain,  therefore,  that  the  ancient  assertion  of  sovereignty 
over  the  narrow  seas  is  invoked  to  give  countenance  to  the  rule 
now  sought  to  be  established,  of  jurisdiction  over  the  three-mile 
zone. 

"  If  this  rule  is  to  prevail,  it  must  be  on  altogether  different  grounds. 
To  invoke,  as  its  foundation  or  in  its  support,  an  assertion  of  sover- 
eignty which,  for  all  practical  purposes,  is,  and  always  has  been,  idle 
and  unfounded,  and  the  invalidity  of  which  renders  it  necessary  to 
have  recourse  to  the  new  doctrine,  involves  an  inconsistency,  on 
which  it  would  be  superfluous  to  dwell.  I  must  confess  myself 
unable  to  comprehend  liow,  when  the  ancient  doctrme  as  to  sover- 
eignty over  the  narrow  seas  is  adduced,  its  operation  can  be  confined 
to  the  three-mile  zone.  If  the  argument  is  good  for  anything,  it 
must  apply  to  the  whole  of  the  surrounding  seas.  But  the  counsel 
for  the  Crown  evidently  shrank  from  applying  it  to  this  extent. 
Sueli  a  pretension  would  not  be  admitted  or  endured  by  foreign 
nations.  That  it  is  out  of  this  extravagant  assertion  of  sover- 
eignty that  the  doctrine  of  the  three-mile  jurisdiction,  asserted  on 
the  part  of  the  Cro^n,  and  which,  the  older  claim  being  necessarily 
abandoned,  we  are  now  called  upon  to  consider,  has  sprung  up,  I 
readily  admit.  *  *  * 

"  With  the  celebrated  work  of  Grotius,  published  in  1609,  began 
the  great  contest  of  the  jurists  as  to  the  freedom  of  the  seas. 
"  The  controversy  ended,  as  controversies  often  do,  in  a  species  of 
compromise.  "While  maintaining  the  freedom  of  the  seas,  Grotius, 
in  his  work  De  Jure  Belli  et  Pacis^  had  expressed  an  opinion  that, 
while  no  right  could  be  acquired  to  the  exclusive  possession  of  the 
ocean,  an  exclusive  right  or  jurisdiction  might  be  acquired  in  respect 
of  particular  portions  of  the  sea  adjoinmg  the  territory  of  indi- 
vidual states.  *  *  * 


CHAP.  1.]  THE  QUEEN  V.   KEYN.  59 

"Other  writers  adopted  a  similar  principle,  but  with  very  varying- 
views  as  to  tlie  extent  to  which  tlie  right  might  be  exercised.  Alberi- 
cus  Gentiles  extended  it  to  100  miles ;  Baldus  and  Bodinus  to  sixty. 

"  Loecenius  (De  Jure  3Iaritimo,  ch.  iv.,  s.  G)  puts  it  at  two  days'  sail ; 
another  writer  makes  it  extend  as  far  as  could  be  seen  from  the 
shore.  Yalin,  in  his  Commentary  on  the  French  Ordinances  of 
1681  (ch.  v.),  would  have  it  reach  as  far  as  bottom  could  be  found 
with  the  lead  line.  *  *  * 

"Differing  altogether  from  these  writers  as  to  the  extent  of 
maritime  sovereignty,  Bynkershoek,  an  advocate,  like  Grotius,  for 
the  mare  liberum,  and  who  entered  the  lists  against  Selden  as  to  the 
dominion  of  England  in  the  so-called  English  Sea,  in  his  treatise  De 
Dominio  Maris,  published  in  1702,  follows  up  the  idea  of  Grotius  as 
to  a  limited  dominion  of  the  sea  from  the  shore.  *  *  * 

"After  combciting  the  doctrine  of  a  mare  dausion  as  regards 
the  sea  at  large,  and  enumerating  these  hiconsistent  opinions,  which 
he  seems  little  disposed  to  respect,  Bynkershoek  continues  :  '  ITinc 
videas  priscos  juris  magistros,  qui  dominium  in  mare  proximum 
ausi  sunt  agnoscere,  in  regundis  ejus  finibus  admodum  vagari  incer- 
tos.'  '  Quare  omnino  videtur  rectius,'  he  adds,  after  disposing  of 
the  foregoing  opinions,  '  Eo  potestatem  terrse  extendi,  quo- 
usque  tormenta  exploduntur;  eatenus  quippe,  cum  imperare,  tum 
possidere  videmur.  Loquor  autem  de  his  temporibus ;  quibus  illis 
machinis  utimur ;  alioquin  generaliter  decendum  esset,  potestatem 
terrse  finiri,  ubi  finitur  armorum  vis  ;  etenim  haec,  ut  diximus,  pos- 
sessionem tuetur.' 

"  We  have  here,  for  the  first  time,  so  far  as  I  am  aware,  a  sugges- 
tion as  to  a  territorial  dominion  over  the  sea,  extending  as  far  as 
cannon-shot  would  reach — a  distance  which  succeeding  writers  fixed 
at  a  marine  league,  or  three  miles.  Prior  to  this,  no  one  had  suggested 
such  a  limit. 

"  The  jurisdiction,  assumed  in  the  Admiralty  commissions,  or 
exercised  l)y  the  Court  of  King's  Bench  in  the  time  of  the  Edwards, 
was  founded  on  the  King's  alleged  sovereignty  over  the  whole  of  the 
narrow  seas  ;  it  had  no  reference  whatever  to  any  notion  of  a  terri- 
torial sea.  To  English  lawyers  the  idea  of  this  limited  jurisdiction 
was  utterlj'  unknown. 

"With  Selden  and  Hale,  they  stood  up  stoutly  for  the  Kings 
undivided  dominion  over  the  four  seas.  No  Enghsh  author  makes 
any  distinction,  as  regards  the  dominion  of  the  Crown,  between 
the  narrow  seas  as  a  whole  and  any  portion  of  them  as  adjacent 
to  the  shore.  The  doctrine  was  equally  unknown  to  the  Scotch 
lawyers.  *  *  * 


60  STATES.  [part  I. 

"  Even  to  our  times  the  doctrine  of  the  three-mile  zone  has 
never  been  adopted  by  tlie  writers  on  Enghsh  law.  To  Blackstone 
who,  in  his  Ccnnmentaries,  treats  of  the  sea  with  reference  to  the 
prerogative,  as  also  to  his  modern  ecUtor,  Mr.  Stephen,  it  is  miknown ; 
equally  so  to  Mr.  Chitty,  whose  work  on  the  prerogative  is  of  the 
present  century.  It  was  not  till  the  beginning  of  this  century  that 
any  mention  of  such  a  doctrine  occurs  in  the  courts  of  this  country. 
But  to  the  continental  jurists,  the  suggestion  of  Bynkershoek  seemed 
a  happy  solution  of  the  great  controversy  as  to  the  freedom  of  the 
sea;  and  the  foTmuh\,  jyotestas  Jtnitu?' ubi  Jiirttur  anrtoriov  r/.s,  was 
a  taking  one  ;  and  succeeding  publicists  adopted  and  repeated  the 
rule  which  their  predecessor  had  laid  down,  without  nmcli  troubling 
themselves  to  ascertain  or  inquire  M'hether  that  rule  had  Ijeen  rec- 
ognized and  adopted  by  the  maritime  nations  wlio  were  to  be 
affected  by  it.  *  *  * 

"  But  to  what,  after  all,  do  these  ancient  authorities  amount  ? 
Of  what  avail  are  they  towards  establishing  that  the  soil  in  the  three- 
mile  zone  is  part  of  the  territorial  domain  of  the  Crown  ?  These 
assertions  of  sovereignty  were  manifestly  based  on  the  doctrine  that 
the  narrow  seas  are  part  of  the  realm  of  England.  But  that  doctrme 
is  now  exploded.  Who  at  this  day  would  venture  to  affirm  that  the 
sovereignty  thus  asserted  in  those  times  now  exists  ?  What  Eng- 
lish lawyer  is  there  who  would  not  shrink  from  maintaining — what 
foreign  jurist  who  would  not  deny — what  foreign  government  which 
would  not  repel  such  a  pretension?  I  listened  carefully  to  see 
whether  such  an  assertion  would  be  made ;  but  none  was  made. 
Xo  one  has  gone  the  length  of  suggesting,  much  less  of  openly  as- 
serting, that  the  jurisdiction  still  exists.  It  seems  to  me,  that  ■\^"hen 
the  sovereignty  and  jurisdiction  from  which  the  property  in  the  soil 
of  the  sea  was  inferred  is  gone,  the  territorial  property  which  was  sug- 
gested to  be  consequent  upon  it,  must  necessarily  go  with  it.   *  *  * 

"  It  thus  appearing,  as  it  seems  to  me  that  the  littoral  sea 
beyond  low-water  mark  did  not,  as  distinguished  from  the  rest  of 
the  high  seas,  originally  form  part  of  the  territory  of  the  realm,  the 
question  again  presents  itself,  when  and  how  did  it  become  so  ?  Can 
a  portion  of  that  which  was  before  high  sea  have  been  converted 
into  British  territory,  without  any  action  on  the  part  of  the  British 
government  or  legislature — by  the  mere  assertions  of  writers  on 
public  law — or  even  by  the  assent  of  other  nations  ? 

"  And  when  in  sup[)ort  of  this  position,  or  of  the  theory  of  the 
three-mile  zone  in  general,  the  statements  of  the  writers  on  inter- 
national law  are  relied  on,  tlie  question  may  well  be  asked,  upon 
what  authority  are  these  statements  founded  ^ 


ClIAr.  I.]  THE   QUEEN    V.  KEYN.  61 

"•  When  and  in  what  manner  have  the  nations,  who  are  to  be  af- 
fected by  such  a  rule  as  these  writers,  following  one  another,  have 
laid  down,  signified  their  assent  to  it?  to  say  nothing- of  the  difficulty 
which  might  be  found  in  saying  to  which  of  these  conflicting  o[)in- 
ions  such  assent  had  been  given. 

"  For,  even  if  entire  unanimity  had  existed  in  respect  of  the  im- 
portant particulars  to  which  I  have  referred,  in  place  of  so  much  dis- 
crepancy of  opinion,  the  question  would  still  remain,  how  far  the 
law  as  stated  by  the  publicists  had  received  the  assent  of  the  civ- 
ilized nations  of  the  world. 

"For  writers  on  international  law,  however  valuable  their  labors 
may  be  in  elucidating  and  ascertaining  the  principles  and  rules  of 
law,  cannot  make  the  law.  To  be  binding,  the  law  must  have  received 
the  assent  of  the  nations  who  are  to  be  bound  by  it.  This  assent  may 
be  express,  as  by  treaty  or  the  acknowledged  concurrence  of  govern- 
ments, or  may  be  implied  from  established  usage, — an  instance  of 
which  is  to  be  found  in  the  fact  that  merchant  vessels  on  the  high 
seas  are  held  to  be  subject  only  to  the  law  of  the  nation  under  whose 
flag  they  sail,  while  in  the  ports  of  a  foreign  state  they  are  subject 
to  the  local  law  as  well  as  to  that  of  their  own  country.  In  the 
absence  of  proof  of  assent,  as  derived  from  one  or  other  of  these 
sources,  no  unanimity  on  the  part  of  theoretical  writers  would  war- 
rant the  judicial  application  of  the  law  on  the  sole  authority  of 
their  views  or  statements.  Nor,  in  my  opinion,  would  the  clearest 
proof  of  unanimous  assent  on  the  part  of  other  nations  be  sufficient 
to  authorize  the  tribunals  of  this  country  to  apply,  without  an  Act 
of  Parliament,  what  would  practically  amount  to  a  new  law.  In 
so  doing  we  should  be  unjustifiably  usurping  the  province  of  the 
legislature.  The  assent  of  nations  is  doubtless  suflicient  to  give 
the  power  of  parliamentary  legislation  in  a  matter  otherwise  within 
the  sphere  of  international  law,  but  it  would  be  powerless  to  confer 
without  such  legislation  a  jurisdiction  beyond  and  unknown  to  the 
law,  such  as  that  now  insisted  on,  a  jurisdiction  over  foreigners  in 
foreign  ships  on  a  portion  of  the  high  seas. 

"  When  I  am  told  that  all  other  nations  have  assented  to  such 
an  absolute  dominion  on  the  part  of  the  littoral  state,  over  this  por- 
tion of  the  sea,  as  that  their  ships  may  be  excluded  from  it,  and 
that,  without  any  open  legislation,  or  notice  to  them  or  their  sub- 
jects, the  latter  may  be  held  liable  to  the  local  law,  I  ask  first  what 
proof  there  is  of  such  assent  as  here  asserted;  and,  secondly,  to 
what  extent  has  such  assent  been  carried  ;  a  question  of  infinite  im- 
portance, when  undirected  by  legislation,  we  are  called  upon  to  apply 
the  law  on  the  strenofth  of  such  assent.     It  is  said  that  \\q  are  to 


G2  STATES.  [part  I. 

take  the  statements  of  the  publicists  as  conclusive  proof  of  the  as- 
sent in  question,  and  much  has  been  said  to  impress  on  us  the  re- 
spect which  is  due  to  their  authority,  and  that  they  are  to  be  looked 
upon  as  witnesses  of  the  facts  to  which  they  speak,  witnesses  whose 
statements,  or  the  foundation  on  which  those  statements  rest,  we 
are  scarcely  at  liberty  to  question,  I  demur  altogether  to  this 
position.  I  entertain  a  profound  respect  for  the  opinion  of  jurists 
when  dealing  with  the  matters  of  judicial  principle  and  opinion, 
but  we  are  here  dealing  with  a  question  not  of  opinion  but  of  fact, 
and  I  must  assert  my  entire  liberty  to  examine  the  evidence  and 
see  upon  what  foundation  these  statements  are  based. 

"  The  question  is  not  one  of  theoretical  opinion,  but  of  fact,  and, 
fortunately,  the  writers  upon  whose  statements  we  are  called  upon 
to  act  have  afforded  us  the  means  of  testing  those  statements  by 
reference  to  facts.  They  refer  us  to  two  thmgs,  and  tj  these  alone — 
treaties  and  usage. 

"Let  us  look  a  little  more  closely  into  both. 

"  First,  then,  let  us  see  how  the  matter  stands,  as  regards  treaties. 
It  may  be  asserted,  without  fear  of  contradiction,  that  the  rule  that 
the  sea  surrounding  the  coast  is  to  be  treated  as  a  part  of  the  ad- 
jacent territory,  so  that  the  state  shall  have  exclusive  dominion 
over  it,  and  that  the  law  of  the  latter  shall  be  generally  applicable  to 
those  passing  over  it  in  the  ships  of  other  nations,  has  never  been 
made  the  subject  matter  of  any  treaty,  or,  as  matter  of  acknowledged 
right,  has  formed  the  basis  of  any  treaty,  or  has  ever  been  the  sub- 
ject of  diplomatic  discussion.  It  has  been  entirely  the  creation 
of  the  writers  on  international  law.  It  is  true  that  the  writers  who 
have  been  cited,  constantly  refer  to  treaties  in  support  of  the  doc- 
trine they  assert.  But  when  the  treaties  they  refer  to  are  looked 
at,  they  will  be  found  to  relate  to  two  subjects  only — the  observance 
of  the  rights  and  obligations  of  neutrality,  and  the  exclusive  right 
of  fishing.  In  fixing  the  limits  to  which  these  rights  should 
extend,  nations  have  so  far  followed  the  writers  on  international 
law  as  to  adopt  the  three  miles  range  as  a  convenient  distance. 
There  are  several  treaties  by  which  nations  have  engaged,  in  the 
event  of  either  of  them  being  at  war  with  a  third,  to  treat  the  sea 
within  three  miles  of  each  other's  coasts  as  neutral  territory,  within 
which  no  warlike  operations  should  be  carried  on  ;  instances  of 
which  will  be  found  in  the  various  treatises  on  international  law. 
Thus  for  instance,  in  the  treaties  of  commerce,  between  Great  Brit- 
ain and  France,  of  September,  178G;  between  France  and  Russia  of 
January,  1787 ;  between  Great  Britain  and  the  United  States,  of 
October,  1794,  each  contracting  party  engages,  if  at  war  with  any 


CHAP.  I.]  THE  QUEEN  V.   KEYX.  G3 

other  nation,  not  to  carry  on  hostilities  within  cannon  shot  of  the 
coast  of  tlic  otlier  contracting  party ;  or,  if  the  other  should  be  at 
war,  not  to  allow  its  vessels  to  be  captured  within  the  like  distance. 
There  are  many  other  treaties  of  the  like  tenor,  a  list  of  which  is 
given  by  Azuni  (vol.,  II  p.  78)  ;  and  various  ordinances  and  laws 
have  been  made  by  the  different  states  in  order  to  give  effect  to 
them. 

"  Again,  nations,  possessing  opposite  or  neighboring  coasts,  border- 
ing on  a  common  sea,  have  sometimes  found  it  expedient  to  agree 
that  the  subjects  of  each  shall  exercise  an  exclusive  right  of  fishing 
to  a  given  distance  from  their  own  shores,  and  here  also  have 
accepted  the  three  miles  as  a  convenient  distance.  Such,  for  in- 
stance, are  the  treaties  made  between  this  country  and  the  United 
States,  in  relation  to  the  fishery  oft'  the  coast  of  ISTewfoundland,  and 
those  between  this  country  and  France,  in  relation  to  the  fishery  on 
their  respective  shores ;  and  local  laws  have  been  passed  to  give 
effect  to  these  engagements. 

"  But  in  all  these  treaties  this  distance  is  adopted,  not  as  matter 
of  existing  right  established  by  the  general  law  of  nations,  but  as 
matter  of  mutual  concession  and  convention.  Instead  of  upholding 
the  doctrine  contended  for,  the  fact  of  these  treaties  having  been 
entered  into  has  rather  the  opposite  tendency  ;  for  it  is  obvious  that, 
if  the  territorial  right  of  a  nation  bordering  on  the  sea  to  this  por- 
tion of  the  adjacent  waters  had  been  established  by  the  connnon 
assent  of  nations,  these  treaty  arrangements  would  have  been  wholly 
superfluous. 

"Each  nation  would  have  been  bound,  independently  of  treaty 
engagement,  to  respect  the  neutrality  of  the  other  in  these  waters  as 
much  as  in  its  inland  waters.  The  foreigner  invading  the  rights  of 
the  local  fisherman  would  have  been  amenable,  consistently  with 
international  law,  to  local  legislation  prohibiting  such  infringement, 
without  any  stipulation  to  that  effect  by  treaty.  For  what  object, 
then,  have  treaties  been  resorted  to  ?  Manifestly  in  order  to  obviate 
all  questions  as  to  concurrent  or  conflicting  rights  arising  under  the 
law  of  nations. 

"  Possibly,  after  these  precedents  and  all  that  has  been  written  on 
this  subject,  it  may  not  be  too  much  to  say  that,  independently  of 
treaty,  the  three-mile  belt  of  sea  might  at  this  day  be  taken  as 
belonging  for  these  purposes,  to  the  local  state. 

"  But  it  is  scarcely  logical  to  infer,  from  such  treaties  alone,  that, 
because  nations  have  agreed  to  treat  the  littoral  sea  as  belonging  to 
the  country  it  adjoins,  for  certain  specified  objects,  they  have  there- 
fore assented  to  forego  all  other  rights  previously  enjoyed  in  connnon. 


64  STATES.  [part  I. 

and  have  submitted  themselves,  even  to  the  extent  of  the  right  of 
navigation  on  a  ]3ortion  of  the  high  seas,  and  the  liability  of  their 
subjects  therein  to  the  criminal  law,  to  the  will  of  the  local  sovereign, 
and  the  jurisdiction  of  the  local  state.  Equally  illogical  is  it,  as  it 
seems  to  me,  from  the  adoption  of  the  three-mile  distance  in  these 
particular  instances,  to  assume,  independently  of  everything  else,  a 
recognition,  by  the  common  assent  of  nations,  of  the  principle  that 
the  subjects  of  one  state  passing  in  ships  within  three  miles  of  the 
coast  of  another,  shall  be  in  all  respects  subject  to  the  law  of  the 
latter.  It  may  be  that  the  maritime  nations  of  the  world  are  pre- 
pared to  acquiesce  in  the  appropriation  of  the  littoral  sea  ;  but  I  can- 
not think  that  these  treaties  help  us  much  towards  arriving  at  the 
conclusion  that  this  appropriation  has  actually  taken  j^lace.  At  all 
events,  the  question  remains,  whether  judicially  we  can  infer  that 
the  nations  who  have  been  jDarties  to  these  treaties,  and,  still  further, 
those  who  have  not,  have  thereby  assented  to  the  application  of  the 
criminal  law  of  other  nations  to  their  subjects  on  the  waters  in 
question,  and  on  the  strength  of  such  inference  so  apply  the  crimi- 
nal law  of  this  country. 

"  The  uncertainty  in  which  we  are  left,  so  far  as  judicial  knowl- 
edge is  concerned,  as  to  the  extent  of  such  assent,  likewise  presents, 
I  think,  a  very  serious  obstacle  to  our  assuming  the  jurisdiction  we 
are  called  upon  to  exercise,  independently  of  the,  to  my  mind,  still 
more  serious  difficult}^  that  we  should  Ije  assuming  it  without  legis- 
lative warrant. 

"  So  nmch  for  treaties.  Then  how  stands  the  matter  as  to  usage, 
to  which  reference  is  so  frequently  made  by  the  publicists  in  support 
of  their  doctrine  ? 

"  When  the  matter  is  looked  into,  the  only  usage  found  to  exist 
is  such  as  is  connected  with  navigation,  or  with  revenue,  local 
fisheries,  or  neutrality,  and  it  is  to  these  alone  that  the  usage  relied 
on  is  confined.  Usage  as  to  the  application  of  the  general  law  of  the 
local  state  to  foreigners  on  the  littoral  sea,  there  is  actually  none. 
Xo  nation  has  arrogated  to  itself  the  right  of  excluding  foreign 
vessels  from  the  use  of  its  external  littoral  waters  for  the  purpose  of 
navigation,  or  has  assumed  the  power  of  making  foreigners  in  foreign 
ships  passing  through  these  waters  subject  to  its  law,  otherwise 
than  in  respect  of  the  matters  to  which  I  have  just  referred,  Xor 
have  the  tribunals  of  any  nation  held  foreigners  in  these  waters 
amenable  generally  to  the  local  criminal  law  in  respect  of  offenses. 
It  is  for  the  first  time  in  the  annals  of  jurisprudence  that  a  court  of 
justice  is  now  called  upon  to  apply  the  criminal  law  of  the  country 
to  such  a  case  as  the  present. 


CHAP.  I.]  THE  gUEE^■  V.   KEYN.  05 

"  It  may  well  be,  I  say  again,  that — after  all  that  has  been  said  and 
done  in  this  respect — after  the  instances  which  have  been  mentioned 
of  the  adoption  of  the  three-mile  distance,  and  the  repeated  asser- 
tion of  this  doctrine  by  the  writers  on  public  law,  a  nation  which 
slionld  now  deal  with  this  portion  of  the  sea  as  its  own,  so  as  to 
make  foreigners  within  it  subject  to  its  law,  for  the  prevention  and 
punishment  of  offenses,  would  not  be  considered  as  infringing  the 
rights  of  other  nations.  But  I  apprehend  that  as  the  ability  so  to 
deal  with  these  waters  would  result,  not  from  any  original  or 
inherent  right,  but,  from  the  acquiescence  of  other  states,  some  out- 
ward manifestation  of  the  national  will,  in  the  shape  of  open  prac- 
tice or  municipal  legislation,  so  as  to  amount,  at  least  constructively, 
to  an  occupation  of  that  which  was  before  Unappropriated,  would  be 
necessary  to  render  the  foreigner,  not  previously  amenable  to  our 
general  law,  subject  to  its  control. 

"  That  such  legislation,  whether  consistent  witli  the  general  law 
of  nations  or  not,  would  be  binding  on  the  tribunals  of  this  country 
— leaving  the  question  of  its  consistency  with  international  law  to 
be  determined  between  the  governments  of  the  respective  nations — 
can  of  course  admit  of  no  doubt.  The  question  is  whether  such 
legislation  would  not,  at  all  events,  be  necessary  to  justify  our 
courts  in  applying  the  law  of  this  country  to  foreigners  under 
entirely  novel  circumstances  in  which  it  has  never  been  applied 
before.  *  *  * 

"It  is  unnecessary  to  the  defense,  and  equally  so  to  the  de- 
cision of  the  case,  to  determine  whether  Parliament  has  the  right 
to  treat  the  three-mile  zone  as  part  of  the  realm  consistently  with 
international  law. 

"  That  is  a  matter  on  which  it  is  for  Parliament  itself  to  decide. 
It  is  enough  for  us  that  it  has,  so  far  as  to  be  binding  upon  us,  the 
power  to  do  so.  The  question  is  whether,  acting  judicially,  we  can 
treat  the  power  of  Parliament  to  legislate  as  making  up  for  the  ab- 
sence of  actual  legislation. 

"  I  am  clearly  of  opinion  that  we  cannot,  and  that  it  is  only  in  the 
instance  in  which  foreigners  on  the  sea  have  been  made  specifically 
liable  to  our  law  by  statutory  enactment  that  that  law  can  be  applied 
to  them.*  *  * 

"  Hitherto,  legislation,  so  far  as  relates  to  foreigners  in  foreign 
ships  in  this  part  of  the  sea,  has  been  confined  to  the  maintenance 
of  neutral  rights  and  obligations,  the  prevention  of  breaches  of  the 
revenue  and  fishery  laws,  and,  under  particular  circumstances,  to 
cases  of  collision. 

"  In  the  two  first  the  legislation  is  altogether  irrespective  of  the 
5 


66  STATES.  [PAET  I. 

three-mile  distance,  being  fonnded  on  a  totally  different  principle, 
namely,  the  right  of  a  state  to  take  all  necessary  measures  for  the 
protection  of  its  territory  and  rights,  and  the  prevention  of  any  breach 
of  its  revenue  laws.  *  *  * 

"It  is  apparent  that,  with  the  exception  of  the  penalties  im- 
posed for  violation  of  neutral  duties  or  breaches  of  the  revenue  or 
fishery  laws,  there  has  been  no  assertion  of  legislative  authority  in 
the  general  application  of  the  penal  law  to  foreigners  within  the  three- 
mile  zone.  The  legislature  has  omitted  to  adopt  the  alleged  sover- 
eignty over  the  littoral  sea,  to  the  extent  of  making  our  penal  law 
applicable  generally  to  foreigners  passing  through  it  for  the  purpose 
of  navigation.  Can  a  court  of  justice  take  upon  itself,  in  such  a  mat- 
ter, to  do  what  the  legislature  has  not  thought  fit  to  do — that  is,  make 
the  whole  body  of  our  penal  law  applicable  to  foreign  vessels  within 
three  miles  of  our  coast  ? 

"  It  is  further  apparent  from  these  instances  of  specific  legislation 
that,  when  ascertaining  its  power  to  legislate  with  reference  to  the 
foreigner  within  the  three-mile  zone,  Parliament  has  deemed  it  neces- 
sary, wherever  it  was  thought  right  to  subject  him  to  our  law,  ex- 
pressly to  enact  that  he  should  be  so.  We  must  take  this,  I  think, 
as  an  exposition  of  the  opinion  of  Parliament  that  specific  legislation 
is  here  necessary,  and  consequently,  that  without  it  the  foreigner  in 
a  foreign  vessel  will  not  come  within  the  general  law  of  this  country 
in  respect  of  matters  arising  on  the  sea. 

"Legislation,  in  relation  to  foreign  ships  coming  into  British  ports 
and  waters,  rests  on  a  totally  different  principle,  as  was  well  explained 
by  Dr.  Lushington,  in  the  case  of  The  Annapolis} 

"  'The  Parliament  of  Great  Britain  it  is  true,'  says  Dr.  Lushington, 
'  has  not,  according  to  the  principles  of  public  law,  any  authority  to 
legislate  for  foreign  vessels  on  the  high  seas,  or  for  foreigners  out  of 
the  limits  of  British  jurisdiction  ;  though,  if  Parliament  thought  fit 
so  to  do,  this  court,  in  its  instance  jurisdiction  at  least,  would  be 
bound  to  obey.  In  cases  admitting  of  doubt,  the  presumption  would 
be  that  Parliament  intended  to  legislate  v/ithout  violating  any 
rule  of  international  law,  and  the  construction  has  been  ac- 
cordingly. 

" '  Within,  however,  British  jurisdiction,  namely,  within  British 
territory,  and  at  sea  ^^^thin  three  miles  from  the  coast,  and  within  all 
British  rivers  intra  fauces^  and  over  foreigners  in  British  ships,  I 
apprehend  that  the  British  Parliament  has  an  undoubted  right  to 
legislate.     I  am  further  of  opinion  that  Parliament  has  a  perfect  right 

1  Lush.  Adm.  29o. 


r;iAP.  r.]  the  queen  v.  keyn.  G7 

to  say  to  foreign  ships  that  they  shall  not,  without  complying  with 
British  law,  enter  into  Britisli  ports,  and  that  if  they  do  enter  they 
shall  be  subject  to  penalties,  unless  they  have  previously  complied 
with  the  requisitions  ordained  by  the  British  Parliament  whether 
those  requisitions  be,  as  in  former  times,  certificates  of  origin,  or  cleai- 
ance  of  any  description  from  a  foreign  port,  or  clean  bills  of  health, 
or  the  taking  on  board  a  pilot  at  any  place  in  or  out  of  British  juris- 
diction before  entering  British  waters. 

"  '  Whether  the  Parliament  has  so  legislated  is  now  the  question 
to  be  considered.'  *  *  * 

"  In  the  result,  looking  to  the  fact  that  all  pretension  to  sov- 
ereignty or  jurisdiction  over  foreign  ships  in  the  narrow  seas  has 
long  since  been  wholly  abandoned — to  the  uncertainty  which  attaches 
to  the  doctrine  of  the  publicists  as  to  the  degree  of  sovereignty  and 
jurisdiction  which  may  be  exercised  on  the  so-called  territorial  sea — 
to  the  fact  that  the  right  of  absolute  sovereignfy  therein,  and  of 
jienal  jurisdiction  over  the  subjects  of  other  states,  has  never  been 
expressly  asserted  or  conceded  among  independent  nations,  or,  in 
]:»ractice,  exercised,  and  acquiesced  in,  except  for  violation  of  neutral- 
ity or  breach  of  revenue  or  fishery  laws,  which,  as  has  been  pointed 
out,  stand  on  a  different  footing  as  well  as  to  the  fact  that,  neither 
in  legislating  with  reference  to  shipping,  nor  in  respect  of  the  crim- 
inal law,  has  Parliament  thought  proper  to  assume  territorial  sover- 
eignty over  the  three-ndle  zone,  so  as  to  enact  that  all  offenses 
committed  upon  it,  by  foreigners  in  foreign  ships,  should  be  within 
the  criminal  law  of  this  country,  but,  on  the  contrary,  wherever  it 
was  thought  right  to  make  the  foreigner  amenable  to  our  law,  has 
done  so  by  express  and  specific  legislation.  I  cannot  think  that,  in 
the  absence  of  all  precedent,  and  of  any  judicial  decision  or  authority 
applicable  to  the  present  purpose,  we  should  be  justified  in  holding 
an  offense,  committed  under  such  circumstances,  to  be  punishable  by 
the  law  of  England,  especially  as  in  so  holding  we  must  declare  the 
whole  body  of  our  penal  law  to  be  applicable  to  the  foreigner  passing 
our  shores  in  a  foreign  vessel  on  his  way  to  a  foreign  port.  *  *  * 

"  Having  arrived  at  this  conclusion,  it  becomes  necessary  to  con- 
sider the  second  point  taken  on  the  part  of  the  Crown,  namely, 
that  though  the  negligence  of  which  the  accused  was  guilty  occurred 
on  board  a  foreign  ship,  yet,  the  death  having  taken  place  on  board 
a  British  ship,  the  offense  was  committed  within  the  jurisdiction  of 
a  British  court  of  justice.  *  *  * 

"The  question  is— and  this  appears  to  me  to  have  been  lost 
sight  of  in  the  argument— not  whether  the  death  ot  the  deceased, 
which  no  doubt  took  place  in  a  British  ship,  was  the  act  of  the  de 


68  STATES.  [I'AIJT   I. 

fendant  in  sucli  ship,  but  whether  the  defendant,  at  tlie  tmie  the 
act  was  done,  was  himself  within  British  jurisdiction. 

"  But  in  point  of  fact,  tlie  defendant  was,  at  the  time  of  the  oc- 
currence, not  on  hoard  the  Britisli  sliip,  tlie  Stn(t/ic/>/de,  but  on  a 
foreign  ship,  the  Franconia.  *  *  * 

"But  in  order  to  render  a  foreigner  liable  to  the  local  law, 
he  must,  at  the  time  the  offense  was  committed,  have  been 
within  British  territory  if  on  land,  or  in  a  British  ship  if  at  sea.  I 
cannot  think  that  if  two  ships  of  dhferent  nations  met  on  the  ocean, 
and  a  person  on  board  of  one  of  them  Avere  killed  or  wounded  by  a 
shot  fired  from  the  other,  the  person  firing  it  would  be  amenable  to 
the  law  of  the  ship  in  which  the  sliot  took  effect." 

Lush,  .J.,  said,  in  part :  "  In  the  reign  of  Richard  II.,  the  realm 
consisted  of  the  land  within  the  body  of  the  counties.  All  beyond 
low-water  mark  was  part  of  the  high  seas. 

"  At  that  period  the  three-mile  radius  had  not  been  thought  of. 
International  law,  which,  upon  this  subject  at  least,  has  grown  up 
since  that  period,  cannot  enlarge  the  area  of  our  muncipal  law,  nor 
could  treaties  with  all  the  nations  of  the  world  have  that  effect. 
That  can  only  be  done  by  Act  of  Parliament.  As  no  such  act  has 
been  passed,  it  follows  that  what  was  out  of  the  realm  then  is  out  of 
the  realm  now,  and  what  was  part  of  the  high  seas  then  is  part  of 
the  high  seas  now ;  and  upon  the  high  seas  the  Admiralty  jurisdic- 
tion was  confined  to  British  ships.  Therefore,  although,  as  between 
nation  and  nation,  these  waters  are  British  territory,  as  being  under 
the  exclusive  dominion  of  Great  Britain,  in  judicial  language  they 
are  out  of  the  realm,  and  any  exercise  of  criminal  jurisdiction  over  a 
foreign  ship  in  tliese  waters  must  in  my  judgment  be  authorized  by 
an  Act  of  Parliament." 

Lord  Coleridge,  C.  J.,  dissenting  from  the  opinion  of  the  majority, 
said,  in  part  *  *  *  "  But,  first,  I  think  the  offense  was  committed 
within  the  realm  of  England ;  and  if  so,  there  was  jurisdiction  to 
try  it.  *  *  * 

"Now  the  offense  was  committed  much  nearer  to  the  line 
of  low- water  mark  than  three  miles  ;  and  therefore,  in  my  opinion, 
upon  English  territory.  I  pass  by  for  the  moment  the  question 
of  the  exact  limit  of  the  realm  of  England  beyond  low-water 
mark,  I  am  of  opinion  that  it  does  go  beyond  low- water  mark; 
and  if  it  does,  no  limit  has  ever  been  suggested  which  would  ex- 
clude from  the  realm  the  place  where  this  offense  was  committed. 
But  for  the  difference  of  opinion  of  the  Bench,  and  for  the  great  def- 
erence which  is  due  to  those  wlio  differ  from  me,  T  should  have  said 
it  was  impossible  to  hold  that  England  ended  with  low-water  mark. 


CHAP.  I.]  THE  QUEEN  V.   KEYX.  00 

I  do  not  of  course  forget  that  it  is  freely  admitted  to  be  within  the 
competency  of  Parliament  to  extend  the  realm  how  far  soever  it 
pleases  to  extend  it  by  enactments,  at  least  so  as  to  bind  the  tribu- 
nals of  the  country ;  and  I  admit  equally  freely  that  no  statute  has 
in  plain  terms,  or  by  definite  limits,  so  extended  it. 

"  But,  in  my  judgment,  no  Act  of  Parliament  was  required.  The 
proposition  contended  for,  as  I  understand,  is  that  for  any  act  of 
violence  committed  by  a  foreigner  upon  an  English  subject  within  a 
few  feet  of  low- water  mark,  luiless  it  happens  on  board  a  I>ritish 
ship,  the  foreigner  cannot  be  tried,  and  is  dispunishable.  *  *  * 

"By  a  consensus  of  writers,  without  one  single  authority  to 
the  contrary,  some  portion  of  the  coast-waters  of  a  country  is 
considered  for  some  purposes  to  belong  to  the  country  the  coasts  of 
which  they  wash.  *  *  * 

"This  is  established  as  solidly,  as,  by  the  very  nature  of  the 
case,  any  proposition  of  international  law  can  be.  Strictly 
speaking,  international  law  is  an  inexact  expression  and  it  is  apt  to 
mislead  if  its  inexactness  is  not  kept  in  mind.  Law  implies  a  law- 
giver, and  a  tribunal  capable  of  enforcing  it  and  coercing  its  trans- 
gressors. 

"  But  there  is  no  conunon  law-giver  to  sovereign  states  and  no 
tribunal  has  the  power  to  bind  them  by  decrees  or  coerce  them  if  they 
transgress.  The  law  of  nations  is  that  collection  of  usages  which 
civilized  states  have  agreed  to  observe  in  their  dealings  with  one 
another.  What  these  usages  are,  whether  a  particular  one  has  or 
has  not  been  agreed  to,  must  be  matter  of  evidence.  Treaties  and 
acts  of  state  are  but  evidence  of  the  agreement  of  nations,  and  do  not 
in  this  county  at  le'Ant  per  se  bind  the  tribunals.  Xeither,  certainly 
does  a  consensus  of  jurists  ;  but  it  is  evidence  of  the  agreement  of 
nations  on  international  points  ;  and  on  such  points,  when  they  arise, 
the  English  courts  give  effect,  as  part  of  English  law,  to  such  agree- 
ment. *  *  * 

"We  find  a  number  of  men  of  education,  of  many  difi'erent 
nations,  most  of  them  uninterested  in  maintaining  any  particular 
thesis  as  to  the  matter  now  in  question,  agreeing  generally  for 
nearly  three  centuries  in  the  proposition  tliat  the  territory  of  a  mari- 
time country  extends  beyond  low-water  mark. 

"I  can  hardly  myself  conceive  stronger  evidence  to  show  that,  as 
far  as  it  depends  on  the  agreement  of  nations,  the  territory  of  mari- 
time countries  does  so  extend.  *  *  * 

"If  the  matter  were  to  be  determined  for  the  first  time,  I 
should  not  hesitate  to  hold  that  civilized  nations  had  agreed  to  tliis 
prolongation  of  the  territory  of  maritime  states,  upon  the  authority 


TO  STATES.  [PAKT    I. 

of  the  writers  who  have  been  cited  in  this  argument  as  laying  down 
the  affii'mative  of  this  jDroposition.  *  *  * 

"  P'urthermore,  it  has  been  shown  that  EngUsh  judges  have 
held  repeatedly  that  these  coast  waters  are  portions  of  the  realm. 
It  is  true  that  this  particular  pomt  does  not  seem  ever  distinctly  to 
have  arisen.  But  Lord  Coke,  Lord  Stowell,  Dr.  Lushington,  Lord 
Hatherley,  L.  C,  Erie,  C.  J.,  and  Lord  ^Vensleydale  (and  the  catalogue 
might  be  largely  extended)  have  all,  not  hastily,  but  in  writing, 
in  prepared  and  deliberate  judgments,  as  part  of  the  reasoning 
necessary  to  support  their  conclusions,  used  language,  some  of  them 
repeatedly,  which  I  am  unable  to  construe,  except  as  asserting,  on 
the  part  of  these  eminent  persons,  that  the  realm  of  England,  the 
territory  of  England,  the  property  of  the  state  and  Cro\vn  of  Eng- 
land over  the  water  and  the  land  beneath  it,  extends  at  least  so  far 
Ijeyond  the  Ihie  of  low  water  on  the  English  coast,  as  to  include  the 
place  \\here  this  offense  was  connnitted.  *  *  *  The  EngUsh  and 
^Vmerican  text  writers,  and  two  at  least  of  the  most  eminent  Ameri- 
can judges,  Marshall  and  Story,  have  held  the  same  thing. 

"  Further — at  least  in  one  remarkable  instance — the  British 
Parliament  has  declared  and  enacted  this  to  be  the  law.  In  the  pres- 
ent reign  two  questions  arose  between  Her  Majesty  and  the  Prince 
of  Wales  as  to  the  property  in  minerals  below  high-water  mark 
around  the  coast  of  Cornwall.  The  first  question  was  as  to  the  prop- 
erty in  minerals  between  high  and  low-water  mark  arotmd  the 
coasts  of  that  county  ;  and  as  to  the  property  in  minerals  below  low- 
water  mark  won  by  an  extension  of  workings  begun  above  low- 
water  mark. 

"  The  whole  argument  on  the  part  of  the  Crown  was  founded  on 
the  proposition  that  the  fundus  maris  below  low- water  mark,  and 
therefore  beyond  the  limits  of  the  county  of  Cornwall,  belonged  in 
property  to  the  Crown.  The  Prince  was  in  possession  of  the  dis- 
puted mines ;  he  had  worked  them  from  land  undoubtedly  his  own ; 
and,  therefore,  unless  the  Crown  had  a  right  of  property  in  the  bed 
of  the  sea,  not  as  first  occupier — for  the  Prince  was  first  occupier, 
and  was  in  occupation — the  Crown  must  have  failed.  *  *  *  Sir  John 
Patterson  *  *  *  thus  expressed  himself. — 'I  am  of  opinion,  and  so 
decide,  that  the  right  to  the  minerals  below  low-Avater  mark  remains 
and  is  vested  in  the  Crown,  although  those  minerals  may  be  won  by 
workings  commenced  above  low- water  mark  and  extended  below  it,' 
and  he  recommended  the  passing  of  an  Act  of  Parliament  to  give 
practical  effect  to  his  decision,  so  far  as  it  was  in  favor  of  the  crown. 
The  Act  of  Parliament  accordingly  was  passed,  the  21  &  22  Vict.  c.  109. 

"  "We  have  therefore,  it  seems,  the  exj^ress  and  definite  authority  of 


OriAP.  I.]  THE   QUEEN    V.  KEYN.  71 

Parliament  for  the  proposition  that  the  reahn  does  not  end  with  low- 
water  mark,  but  that  the  open  sea  and  the  bed  of  it  are  part  of  the 
realm  and  of  the  territory  of  the  sovereign.  If  so,  it  follows  that 
British  law  is  supreme  over  it,  and  that  the  law  nuist  be  administered 
by  some  tribunal.  It  cannot,  for  the  reasons  assigned  by  my  Brother 
Brett,  be  administered  by  the  judges  of  oyer  and  terminer  ;  it  can  be, 
and  always  could  be,  by  the  Admiralty,  and  if  by  the  Admiralty, 
then  by  the  Central  Criminal  Court." 

The  Court  quashed  the  conviction. 

The  majority  of  the  Court  was  composed  of  Cockburn,  C.  J., 
Kelly,  C.  B.,  Bramwell,  J.  A.,  Lush  and  Field,  JJ.,  Sir  K.  Phillimore 
and  Poll(K'k,  B. — Lord  Coleridge,  C.  J.,  Brett,  and  Amphlett,  J.  A., 
Grove,  Denman  and  Lindley,  JJ.,  dissenting.^ 

1  On  account  of  the  extreme  length  of  the  opinion  of  tlie  Lord  Cliief  Justice,  a 
considerable  part  of  it — and  a  part  interesting  and  valuable — lias  been  necessarily 
omitted.  This  is  true  notably  of  that  jiortion  consisting  of  the  anal\'sis  of  cases, 
and  of  the  abstract  of  the  opinions  of  text  writers.  It  is  regretted,  too,  that  the 
opinions  of  the  other  judges  cannot  be  given. 

For  criticisms  of  the  judgment  in  this  case,  see  Stephen's  History  of  the  Criminal 
Law,  II.,  29— i-2;  Maine's  International  Law,  p.  38;  Judge  Foster,  in  the  Am.  Law 
Eev.,  July,  1877;  Walker's  Science  of  International  Law,  p.  173. 

In  consequence  of  the  decision  in  this  case,  an  act  was  passed  in  the  session  of 
1878  (41  and  42  Vict.  c.  73),  which  would  seem  to  adopt  the  view  of  the  muiority 
of  the  court.  The  preamble  declares  that  "  the  rightful  jurisdiction  of  her  Majesty, 
her  heirs  and  successors  extends  and  has  always  extended  over  the  open  seas 
adjacent  to  the  coasts  of  the  United  Kingdom,  and  of  all  other  parts  of  her  Majesty's 
dominions  to  such  a  distance  as  is  necessary  for  the  defense  and  security  of  such 
dominions,"  and  that  "  it  is  expedient  that  all  offenses  committed  in  the  open  sea 
within  a  certain  distance  of  the  coasts  of  the  Ignited  Kingdom  and  of  all  other  parts 
of  her  Majesty's  dominions,  by  whomsoever  committed,  should  be  dealt  with 
according  to  law." 

The  act  is  entitled  the  Territorial  Waters  Jurisdiction  Act,  1878;  and  enacts  that, 
"  An  offense  committed  by  a  person,  whether  he  is  or  is  not  a  subject  of  her 
Majesty,  on  the  open  sea  within  the  territorial  waters  of  her  Majesty's  dominions, 
is  an  offense  within  the  jurisdiction  of  the  Admiral,  although  it  may  have  been 
committed  on  board  or  by  means  of  a  foreign  ship,  and  the  person  who  committed 
such  offense  may  be  arrested,  tried  and  punished  accordingly. 

"  But  no  proceedings  under  this  act  are  to  be  instituted  against  a  foreigner,  with- 
out the  consent  and  certificate  of  a  Secretary  of  State,  or  in  the  case  of  a  colony, 
the  certificate  of  the  Governor. 

"  The  Territorial  waters  of  her  Majesty's  dominions,  in  reference  to  the  sea, 
means  such  part  of  the  sea  adjacent  to  the  coast  of  the  United  Kingdom,  or  the 
coast  of  some  other  part  of  her  Majesty's  dominions,  as  is  deemed  by  international 
law  to  be  within  the  territorial  sovereignty  of  her  INIajesty  ;  and  for  the  purpose 
of  any  offense  declared  by  this  act  to  be  within  the  jurisdiction  of  the  Admiral, 
any  part  of  the  open  sea  within  one  marine  league  of  the  coast  measured  from  low- 
water  mark  shall  be  deemed  to  be  open  sea  within  the  territorial  waters  of  her 
Majesty's  dominions." 


CHAPTER  II. 

TERRITORIAL  JURISDICTION. 


Sectiox  9. — Immunities   of  Fokeigx  Sovekeigxs. 


VAVASSEUR  V.   KRUPP. 

ClIAXCERY,    1878. 
(L.  7i.,  il  Chancery  Div.,  351.) 

A  foreisn  sovereign  cannot  be  sued  for  the  infringement  of  a  patent. 

\Vliere  a  foreign  sovereign  has  his  name  added  as  defendant,  in  a  suit  against  his 
agents,  in  order  to  be  in  a  position  to  thus  claim  his  property,  he  does  not  thereby 
subject  himself  to  the  jurisdiction  of  the  comt. 

Josiah  Vavasseur,  the  plaintiff  in  this  case,  had  brought  an  action 
against  F.  Krupp,  of  Essen,  in  Germany,  Alfred  Longsden,  his 
agent  in  England,  and  Ahrens  &  Co.,  described  as  agents  for  the 
Government  of  Japan,  claiming  an  injunction  and  damages  for  the 
infringement  of  the  plaintiff's  patent  for  making  shells  and  other 
projectiles.  The  shells  in  question  had  been  made  at  Essen,  in 
Germany,  had  been  there  Ijought  for  the  Government  of  Japan,  had 
been  brought  to  this  country  and  landed  here  in  order  to  be  put  on 
board  three  ships  of  war  wliidi  wore  being  built  here  for  the  Govern- 
ment of  Japan,  to  be  used  as  ammunition  for  the  guns  of  those  ships. 
On  the  18th  of  January,  1878,  an  injunction  was,  without  prejudice 
to  any  question,  granted,  restraining  the  defendants  and  the  owners 
of  the  Avharf  where  the  shells  lay  from  selling  or  delivering  the  shells 
to  the  Government  of  Japan,  or  to  any  person  on  their  behalf,  or 
otherAAise  from  parting  with,  selling,  or  disposing  of  the  shells  and 
projectiles. 

On  the  11th  of  ]\Iay  an  application  to  the  court  was  made  on  be- 
half of  the  Mikado  of  Ja[)an  and  his  Envoy  Extraordinary  in  this 
country,  that,  notwithstanding  the  injunction,  the  Mikado  and  his 
agents  might  be  at  liberty  to  remove  the  shells,  and  that  if,  and  so 
far  as  might  l)e  necessary,  the  ^Mikado  and  his  Envoj'  should  for  the 
72 


CHAr.  II.]  VAVASSEUR    V.  KKUI'P.  73 

purpose  of  making  and  being  heard  upon  such  application  be  added 
as  defendants  in  tlie  suit. 

Upon  tliis  application  an  order  Avas  made  by  the  Master  of  the 
Rolls  that  on  the  Mikado  by  his  counsel  sul)niitting  to  the  jurisdic- 
tion of  this  (;()urt  and  desiring  to  be  made  a  defendant,  and  on  pay- 
ment into  court  by  the  Mikado  of  £100  as  security  for  costs  the 
name  of  the  ^likado  be  added  as  a  party  defendant  in  the  action. 

Xotice  of  motion  was  then  given  on  the  part  of  the  jMikado  that 
the  injunction  might  be  dissolved,  and  that  the  Mikado  might  be  at 
liberty  to  take  possession,  and  remove,  out  of  the  jurisdiction  of  the 
court,  the  shells  in  question,  the  property  of  his  Imperial  Majesty. 

James,  L.  J.,  Brett,  L.  J.,  and  Cotton',  L.  J.,  concurred,  each  deliver- 
ing an  opinion. 

The  following  is  that  of  Brett,  L.  J. : — "It  does  not  seem  to  me 
that  in  this  ease  there  is  any  fact  whatever  in  dispute. 

"  These  shells  were  made  by  Krupp  at  Essen.  That  was  no  in- 
fiingement  of  the  plaintiff's  patent.  In  Germany  they  were  sold  to 
the  Mikado  and  paid  for  by  the  agents  of  the  Mikado.  None  of 
these  facts  are  in  dispute ;  and  this  purchase  and  sale  was  a  perfectly 
lawful  purchase  and  sale.  The  Mikado  had  three  sliips  of  war  build- 
mg  in  this  country,  and  he  desired  tliat  these  shells  should  be  sent 
to  this  country  and  put  on  board  these  ships.  They  were  sent  to 
this  country  by  the  order  and  by  the  authority  of  the  jNIikado,  through 
Ahrens  &  Co.  They  were  brought  into  this  country,  and  they  Avere 
deposited  on  a  wharf.  The  plaintiff  then  finding  these  shells  in  this 
country,  and  finding,  as  he  alleges,  that  they  were  made  according  to 
the  process  of  his  patent,  asserts  that  the  bringing  them  into  this 
country  by  Ahrens  &  Co.  is  an  infringement  of  his  patent  by  them  ; 
and  thereupon  he  brings  an  action  against  Ahrens  &  Co.,  for  the  in- 
fringement. In  that  action  he  claims  an  injunction  against  Ahrens 
&  Co.,  and  it  may  be  that  he  claims  an  order  from  the  court  to  destroy 
those  shells  because  he  says  they  are  an  infringement  of  his  patent. 
In  the  course  of  that  suit  an  injunction  is  obtained  against  Ahrens  & 
Co.,  and  against  others,  which  injunction  in  terms  forbids  them  from 
delivering  these  shells,  which  with  other  things  are  in  their  pos- 
session, to  the  ships  of  the  Mikado,  and  in  fact  forbids  them  fi'om 
sending  the  shells  to  Japan.  To  this  action  the  Mikado  was  no 
party,  but  he  or  his  agents  here  come  forward  and  claim  to  have  the 
delivery  and  possession  of  these  shells.  The  defendants  in  the 
action  are  not  unwilling  to  give  the  shells  to  the  Mikado,  but  they 
say,  '  If  we  do  so,  it  may  be  said  that  we  have  broken  the  injunction, 
and  we  may  therefore  be  liable  to  certain  penalties.'     It  seems  to  me 


74  TEHiriTOEIAL   JURISDICTION.  [PART  I. 

bej'ond  dispute  that  this  was  the  purpose  for  wliich  the  Mikado 
came  in  and  desired  to  be  made  a  party  to  the  suit,  and  the  Master 
of  the  Rolls  thus  describes  the  purpose.  [His  Lordship  then  read 
the  judj^ment  of  the  Master  of  tlie  Rolls.]  Now  it  is  said  that  in  the 
first  place  there  is  a  dispute  whether  these  shells  are  the  property  of 
the  Mikado.  It  is  argued  that  if  he  were  a  private  individual,  then, 
althoug-h  he  has  purchased  these  shells  and  paid  for  them,  yet,  inas- 
much as  there  has  been  an  infrmgement  of  the  patent,  the  property 
is  not  in  him,  because  the  court  may  order  the  shells  to  be  destroyed. 
Is  that  argument  good  or  not?  To  my  mind  it  is  utterly  fallacious. 
The  patent  law  has  nothing  to  do  with  the  property.  The  facts  here 
are  undisputed  that  Krupp  made  them  with  his  own  materials  in 
Germanj^  Avhere  he  had  a  right  to  make  them ;  that  he  entered  into 
a  contract  to  sell  specific  shells  to  the  Mikado ;  that  that  contract  was 
performed,  and  that  the  shells  were  paid  for,  and  that  they  were 
delivered  in  Germany  to  the  Mikado's  agent.  Well,  unless  the 
patent  law  prevents  the  property  from  passing,  nobody  can  doubt 
that  the  property  passed  to  the  Mikado.  Therefore  the  dispute  is 
not  upon  facts,  but  upon  a  false  theory  of  law,  that  the  patent  law 
prevented  the  property  from  passing.  I  am  clearly  of  opinion  that 
the  patent  law  did  not  prevent  the  property  from  passing.  The 
goods  were  the  property  of  the  Mikado.  They  were  his  property  ac  a 
sovereign ;  they  were  the  property  of  his  countr^'^ ;  and  therefore  he 
is  in  the  i)Osition  of  a  foreign  sovereign  having  property  here. 

"  Wliether  the  fact  of  Ahrens  &  Co.  bringing  these  goods  into 
England  mider  these  circumstances,  and  with  this  intention,  was 
an  infringement  of  the  patent,  I  decline  to  consider.  I  shall  assume 
for  this  purpose  that  it  was  an  infringement,  and  that  we  have  in  this 
country  property  of  the  Mikado  which  infringes  the  patent.  If  it  is 
an  infringement  of  the  patent  by  the  Mikado  you  cannot  sue  him  for 
that  infringement.  If  it  is  an  infringement  by  the  agents,  you  may 
sue  the  agents  for  that  infringement,  but  then  it  is  the  agents  whom 
you  sue.  The  injunction  is  against  the  agents,  the  Mikado  being  then 
no  party  to  the  action,  and  not  being  forbidden  to  do  anything.  He 
then  comes  here  as  a  sovereign,  and  requires  the  delivery  of  his  own 
goods.  His  only  difficulty  is  the  injunction  against  the  agents,  and 
for  the  purpose  of  enabling  the  court  to  make  an  order,  he  what  is 
called  '  submits  himself  to  the  jurisdiction  of  the  court.'  I  think  the 
interpretation  put  by  the  Master  of  the  Rolls  upon  the  order  then 
made  is  right,  and  that  it  was  only  an  order  that  the  Mikado  might 
be  made  a  defendant  for  the  purpose  of  enabling  the  court  to  make 
the  order  Mhich  the  court  has  made.  lie  now  saj'^s  '  I  know  not, 
and  I  care  not,  whether  my  agents  have  infringed  your  patent  law. 


CHAP.  II,]  VAVASSEUR    V.  KUUPP. 


to 


I  have  property  in  the  country,  which  property  is  my  own.  I 
demand  that  it  sluill  be  delivered  to  me,  and  I  nialce  myself  a  defendant 
in  your  court  merely  for  thepurpo.se  of  your  modifying  the  order 
which  you  have  made,  so  that  my  agents  may  not  be  injured  in  con- 
secpience  of  their  delivering  to  me  my  own  property.' 

"  And  the  only  order  that  the  Master  of  the  Rolls  has  made  is  that 
these  goods  may  be  delivered  up  to  the  Mikado;  the  meaning 
of  which  is  that  the  mere  fact  of  the  Mikado  taking  these  shells 
away  shall  not  be  considered  as  against  Ahrens  ife  Co.  an  infringement 
of  the  injunction.  That  is  the  whole  effect  of  this  order.  The  ^likado 
has  a  perfect  right  to  have  these  goods  ;  no  court  in  this  country  can 
properly  prevent  him  from  having  goods  wliich  are  the  public  prop- 
erty of  his  own  country.  Therefore  it  seems  to  me  that  this  order 
which  is  really  made  for  the  benefit  of  Ahrens  &  Co.,  was  an  order 
rightly  made,  and  that  this  appeal  camiot  be  sustained." 

In  regard  to  the  paint  of  submission  to  the  jurisdiction,  Coytox,  L. 
J.,  said: — "It  is  said  that  although  under  ordinary  circumstances 
there  is  no  jurisdiction  as  against  a  foreign  sovereign,  yet  that  in 
this  particular  case  there  is  jurisdiction  in  consequence  of  the 
Mikado  having  come  in  and  obtained  the  order  of  the  lltli  of  May.  It 
is  said  that  a  sovereign  suing  submits  himself  to  the  court  as  an 
ordinary  plaintiit",  and  that  the  Mikado,  in  consequence  of  having 
obtained  this  order  and  acted  upon  it,  puts  himself  in  the  position 
of  an  ordinary  plaintiff.  In  the  first  place,  there  is  this  fallacy  :  the 
Mikado  is  not  now  in  any  way  suing  in  the  ordinary  sense  of 
the  word,  nor  has  he  come  to  the  court  to  establish  as  against  an 
adverse  claim  his  title  to  the  property,  which  is  reall}''  what  is  meant 
by  a  foreign  sovereign  coming  here  to  sue  to  estaljlish  his  rights.  He 
is  simply  coming,  and  saying,  'The  order  of  the  court,  possibly  in- 
advertently, interferes  with  my  sovereign  rights.  To  prevent  any 
question  as  to  the  defendants'  connnitting  a  breach  of  the  injunction 
by  allowing  me  to  remove  the  property,  make  an  order  that  they  be 
at  liberty,  notwithstanding  the  injunction,  to  hand  them  over  to  me! 

"  So  that,  in  my  opinion,  the  very  foundation  for  the  suggestion 
fails. 

"But  again,  even  if  the  Mikado  had  brought  himself  into  court  as 
an  ordinary  defendant,  that,  in  my  opinion,  would  not  give  the  court 
jurisdiction  as  against  the  subject-matter,  namely,  jurisdiction  to  in- 
terfere with  the  public  property  of  Japan,  which  is  represented  here 
by  the  Mikado.  But  when  one  comes  to  look  at  the  form  of  the  order, 
the  Mikado  does  not  by  it  come  in  as  an  ordinary  defendant.  By  it 
he  simply  says  'I  wish  to  bring  before  the  court  the  facts :  that  these 
are  my  property,  that  the  defendants  were  not  constructing  them 


76  TERRITORIAL   JURISDICTION.  [PART  I. 

under  a  contract  for  me,  or  using  them  under  a  contract  with  me 
I  wish  to  show  that  they  are  my  property.  1  wish  to  apply  for 
liberty  to  remove  ihem  as  the  public  property  of  the  state  of  Japan, 
and  for  that  jmrpose,  if  necessary,  I  ask  to  come  in.' 

"  In  my  opinion,  the  order  taken  fairly  must  be  read  with  reference 
to  the  purjiose  for  which  the  Mikado  applied,  and  that  being  so,  al- 
though possibly  the  form  is  not  very  happy,  it  is  like  a  conditional 
appearance  entered  where  a  defendant  who  considers  himself  improp- 
erly served  with  any  proceeding,  has  entered  a  conditional  appearance, 
in  order  to  contest  the  questions,  which  he  could  not  do  without  an 
appearance  of  some  sort.  It  cannot,  in  my  opinion,  be  said  that  the 
order  puts  the  ]Mika(lo  in  the  position  of  a  plaintitf  or  of  a  person 
who  is  made  simplidter  a  defendant.  He  came  in  for  the  p;irticular 
purpose  of  raising  this  question,  and  the  form  of  the  order,  in  my 
opinion,  ought  not  in  any  way  to  prejudice  the  rights  which  he  would 
have  had  independently  of  that  order." 

Ja3Les,  L.  J. : — "  This  appeal  is  dismissed  with  costs." 


DE  HABER  v.  QUEEX  OF  PORTUGAL. 

QuEEx's    Bench,    1851. 

,   (17  Queeri'H  Bench,  19(5.) 

A  suit  cannot  be  maintained  against  a  foreign  sovereign. 

If  such  a  suit  be  instituted,  the  non-appearanj3  of  the  defendant  sovereign 
does  not  prejudice  liis  rights. 

The  plaintiff  commenced  an  action  of  debt  in  the  court  of  the  Lord 
Mayor  of  London  against  the  Queen  of  Poi-tngal.  It  appears  that 
he  brought  action  for  12,136/  sterling  which  lu>  had  left  in  llie  hands 
of  Ferreiri,  a  Lisbon  banker  and  which  Feireiri  paid  over  to  the 
Portuguese  Government.  The  plaintitf,  proceeding  according  to  the 
custom  of  foreign  attachment  in  London,  sent  out  a  summons  for  the 
defendant  to  appear.  The  defendant  being  called  and  not  appearing, 
the  plaintitf  alleged  that  Senhor  GaWierne  Candida  JCairier  JJe  Hn'to, 
of  London,  the  garnishee  had  money  and  effects  of  the  defendant  in 
his  hands,  and  pi-ayed  to  attach  the  defendant  by  that  money. 
The  judge  awarded  an  attachment  as  prayed. 

The  judgment  of  tlie  court  was  delivered  by  C.vmphell,  C.  J.  : — 
*  *  *  '•  Xotwithstanding  the  dictum  of  Bynkersh<>el\  and  the  outlawry 
of  tlie  King  of  Sjiain,  supposed  to  be  related  by  Selden,  yy^o,  cannot 
doubt  that  the  awarding  of  the  attachment  in  the  present  case  by 


CHAP.  II.]  PKIOLEAU    V.  UNITED    STATES.  77 

the  Lord  ^Mayor's  Court  was  an  excess  of  jurisdiction,  on  the  f^round 
that  the  defendant  is  sued  as  a  foreign  potentate.  *  *  *  We  have 
now  to  consider  whether  we  can  grant  the  proliibition  on  the  ap[)li-- 
cation  of  the  Queen  of  Portugal  before  she  appears  in  the  L<jrd 
Mayor's  Court.  The  philntiff's  counsel  argue  that,  before  she  can  be 
heard,  she  must  api)ear  and  be  put  in  bail,  in  the  alternative,  to  pay 
or  to  render.  It  would  be  very  much  to  be  lamented  if,  before  doing 
justice  to  her,  we  were  obliged  to  im[)ose  a  condition  u[)()n  her  which 
would  be  a  further  indignity,  and  a  further  violation  of  the  law  of 
nations.  If  the  rule  were  that  the  application  for  a  prohil)ition  can 
only  be  by  the  defendant  after  appearance,  we  should  have  liad  little 
scruple  in  making  this  an  exception  to  the  rule.  But  we  find  it  laid 
down  in  books  of  the  highest  authority  that,  where  the  court  to 
which  the  prohibition  is  to  go  has  no  jurisdiction,  a  prohibition  may 
be  granted  upon  the  request  of  a  stranger^  as  well  as  of  the  defendant 
himself. 

"  Therefore  this  court,  vested  with  the  power  of  preventing  all 
inferior  courts  from  exceeding  their  jurisdiction  to  the  prejudice  of 
the  Queen  or  her  subjects,  is  bound  to  interfere  when  duly  informed 
of  such  an  excess  of  jurisdiction.  What  has  been  done  in  this  case 
by  the  Lord  Mayor's  Court  must  be  considered  as  peculiarly  in  con- 
tempt of  the  Crown,  it  being  an  insult  to  an  independent  sovereign, 
giving  that  sovereign  just  cause  of  complaint  to  the  British  Gov- 
ernment, and  having  a  tendency  to  bring  about  a  misunderstanding 
between  our  gracious  Sovereign  and  her  ally  the  Queen  of  Portugal. 

"  Therefore,  upon  the  information  and  complaint  of  the  Queen 
of  Portugal,  either  as  the  party  grieved,  or  as  a  strunr/er,  we  think 
we  are  bound  to  correct  the  excess  of  jurisdiction  brought  to  our 
notice,  and  to  prohibit  the  Lord  Mayor's  Court  from  proceeding 
further  in  this  suit. 

"  Ptule  absolute  for  a  prohibition." 


PPJOLEAU  V.  UNITED  STATES   AXD  ANDREW  JOIIXSOX. 

In  Equity,  1866. 
(L.  I?.,  2  Equity,  0-59.) 

Where  the  United  States  are  plaintiffs  in  a  suit,  and  the  defendants  bring  a 
cross-bill  for  discovery,  and  add  the  name  of  the  President  of  the  United  States  as 
defendant  :  Held  that  it  was  wrong  to  make  the  President  defendant,  as  he  can- 
not be  compelled  to  answer  ;  but  the  proesedings  in  the  original  suit  were  stayed 
until  tlie  answer  of  the  United  States  was  put  in. 


78  TERUITOUIAL   JUKISDICTIOX.  [I'AKT  1. 

This  was  a  cross-bill  to  a  suit  of  United  States  \.  Prioleau.  {S(fpra, 
§  7,  b.) 

The  oiiginal  suit  -was  instituted  by  the  United  States  of  America 
suing  in  their  corp;  rate  capacity  to  establish  their  rights  to  cotton 
shipped  at  Galveston,  Texas,  during  the  rebellion  and  consigned  to 
the  defendants,  for  sale  in  England  for  the  benefit  of  the  de  facto  Con- 
federate Government.  The  United  States,  as  plaintiffs,  moved  for 
an  injunction  to  restrain  the  defendants  from  obtaining  possession 
of  the  cotton  from  the  Dock  and  Harbor  Board,  and  from  dealing 
with  it  otherwise  than  under  the  direction  of  the  plaintiffs,  who 
claimed  it  as  State  property  to  which  they  had  succeeded  on  the  dis- 
solution of  the  so-called  Confederate  Government. 

Tlie  Vice-Chancellor  made  an  order  appointmg  Mr.  Prioleau 
receiver  of  the  cotton  under  bond  of  £20,000.  Messrs.  Prioleau  filed 
this  cross-bill  against  the  United  State  of  America  and  President 
Andrew  Johnson,  for  the  purpose  of  obtaining  discovery  in  reference 
to  the  matters  in  question  in  the  suit. 

Xo  answer  having  been  put  in  l)y  President  Johnson,  the  plaint- 
iffs in  the  cross -suit  moved  that  the  time  for  closing  the  evidence 
in  the  first  suit  might  be  enlarged  until  one  month  after  the  defend- 
ants to  the  cross-bill  had  put  in  their  answer,  and  that,  failing  such 
answer,  the  receivership  of  Prioleau  might  be  discharged  and  his 
recognizances  vacated. 

Extracts  from  the  opiniou  of  the  Vice-Chancellor  are  as  fol- 
lows : — 

•'  The  question  in  this  case  is  one  in  some  degree  novel,  but  the 
general  principles  applicable  to  it  are  sufficiently  established.  The 
only  difficulty  in  the  present  case  is  the  particular  mode  selected  by 
the  plaintiffs  iu  the  cross-suit  for  arriving  at  the  object  they  have 
in  view.  A  bill  being  filed  by  the  United  States  of  America,  under 
that  description,  against  the  defendants,  a  cross-bill  is  filed  by  the 
defendants  for  the  purpose  of  obtaining  discovery.  They  cannot,  of 
course,  obtain  discoverj'^  upon  oath  from  a  body  which  is  corporate 
— it  is  difficult  to  know  how  to  express  its  position.  It  is  not  a 
corporation,  strictly  speaking,  but  it  is  a  body  so  far  corporate  as 
not  to  present  to  the  court  as  a  suitor  any  one  individual.  Where 
the  suitor  is  an  individual,  although  he  may  be  the  sovereign  of  a 
foreign  country,  and  may  of  himself  in  reality  represent  the  whole 
country  of  which  he  is  sovereign,  this  court  has  refused  to  acknowl- 
edge him  when  he  comes  here  as  a  suitor  in  any  other  capacity  than 
as  a  private  individual.  It  has  been  determined  by  the  highest  au- 
thority that  he  must  conform  to  the  practice  and  regulations  for 
administration  of  justice  of  the  tribunals  to  which  he  resorts  for 


CHAP.  II.]     UNITED   STATES   OF    AMERICA    V.  WArJNEIl.  79 

relief ;  and  among  other  things  *  *  *  he  is  obliged  to  answer  upon 
oath.  It  is  also  established  *  *  *  that  all  persons  sued  in  this 
country  as  a  body  corporate  are  amenable  to  the  process  of  tlie 
court,  and  must  answer  by  one  or  other  of  their  officers  upon  oath, 
inasmuch  as  it  is  considered  essential  to  justice  that  answers  shall  be 
made  upon  oath.  *  *  *  Xow  it  is  quite  impossible,  on  any  principle 
of  analogy,  to  say  that  the  President  has  been  properly  selected,  or 
that  he  is  the  person  for  wliose  answer  upon  oath  the  United  States 
must  wait  before  they  proceed  in  their  original  suit.  *  *  *  Now  the 
selection  of  the  President  of  the  United  States  is  open  at  once  to  this 
objection,  that  the  court  cannot  take  judicial  notice — nor  do  I  sup- 
pose it  is  a  matter  of  fact — that  the  United  States  Government  have 
control  over  their  President  or  can  compel  him  to  produce  papers  or 
the  like,  and  therefore  I  cannot  make  any  order  that  the  proceed- 
ings in  the  original  suit  be  stayed  until  the  President  has  put  in  his 
answer.  *  *   * 

"I  can  do  no  more  than  make  an  order  staying  proceedings  until 
the  answer  of  the  United  States  is  put  in." 


UNITED  STATES  OF  AMEPJCA  v.  WAGXER. 

Court  of  Appeals  ix  Cuancery,  18G7. 

{L.  i?.,  2  Chancery  Appeals,  582.) 

A  Eepublic  may  sue  in  its  own  name  ;  and  it  need  not  have  or  create  an  officer 
to  maintain  a  suit  on  its  behalf. 

The  bill  in  this  suit  w^as  filed  by  "  The  United  States  of  America  " 
against  agents  of  the  Confederacy,  doing  business  at  Liverpool. 

The  bill  alleges  that  the  defendants  had  large  quantities  of  cotton 
consigned  to  them — that  in  1865  the  rebellion  was  suppressed  and 
that  all  the  property  held  by  the  government  of  the  so-called  Con- 
federate States,  including  all  moneys,  goods  and  ships  in  the  power 
of  the  defendants,  had  vested  in  the  plaintiffs.  The  bill  prayed  for 
an  account,  and  for  an  order  of  payment  of  the  money  in  the  hands 
of  the  defendants,  and  a  delivery  of  the  goods  and  cotton  in  their 
hands.  The  defendants  demurred  generally,  objecting  that  the  bill 
should  put  forward  the  President  of  the  United  States  or  some  state 
officer,  upon  whom  process  might  be  served,  and  who  might  answer 
a  cross-bill. 

The  demurrer  was  allowed  and  now  the  plaintiffs  appeal. 

The  opinion  of  Lord  Cairxs,  L.  J.,  is  as  follows  : — 

"It  is   admitted  that,  upon  the  statements  in  the  bill,  it  nnist 


80  TERRITORIAL   JURISDICTION.  [PART  I. 

be  taken  that  the  property  claimed  in  tlie  suit  belongs  to  the 
United  States  of  America,  a  foreign  sovereign  State,  adopting  the 
republican  form  of  government,  and  recognized  and  treated  with  as 
such,  and  under  that  style,  by  Her  Majesty;  but  it  is  contended 
that  this  foreign  State,  being  a  republic,  cannot  sue  in  its  own  name, 
and  must  either  associate  with  it  as  plaintiff,  or  proceed  in  the  name 
of  the  President  of  the  Republic,  or  some  other  offi^^er  of  state. 

"  A  proposition  so  startling,  so  grave  in  its  consequences,  and  in 
such  apparent  antagonism  to  the  rules,  that  the  proper  plaintiff  is 
to  be  sought  in  the  owner  of  the  subject  matter  of  the  suit,  and  that  a 
foreign  State  is  at  liberty  to  sue  in  any  of  our  courts,  would  seem  to 
require  some  argument  and  authority  to  support  it.  It  was  contended 
then,  that  when  a  monarch  sues  in  our  courts,  he  sues  as  the  rep- 
resentative of  the  State  of  which  he  is  the  sovereign ;  that  the 
property  claimed  is  looked  upon  as  the  property  of  the  people  or 
State  and  that  he  is  permitted  to  sue,  not  as  for  his  own  property, 
but  as  the  head  of  the  executive  government  of  the  State  to  which 
the  property  belongs :  and  it  was  contended,  in  like  manner,  that 
when  the  property  belongs  to  a  republic,  the  head  of  the  executive, 
or  in  other  words  the  President,  ought  to  sue  for  it. 

"  This  argument,  in  my  opinion,  is  founded  on  a  fallacy.  The 
sovereign,  in  a  monarchical  form  of  government,  may,  as  between 
himself  and  his  subjects,  be  a  trustee  for  the  latter,  more  or  less 
limited  in  his  powers  over  the  property  which  he  seeks  to  recover. 
But  in  the  courts  of  Her  Majesty,  as  in  diplomatic  intercourse  with 
the  government  of  Her  Majesty,  it  is  the  sovereign,  and  not  the  State, 
or  the  subjects  of  the  sovereign,  that  is  recognized.  From  him,  and 
as  representing  him  individually,  and  not  his  State  or  kingdom,  is  an 
ambassador  received.  In  him  individually^  and  not  in  a  representa- 
tive capacity  is  the  public  property  assumed  by  all  other  States,  and 
by  the  courts  of  other  States,  to  be  vested.  In  a  republic,  on  the 
other  hand,  the  sovereign  power,  and  with  it  the  public  property,  is 
held  to  remain  and  to  reside  in  the  State  itself,  and  not  in  any 
officer  of  the  State.  It  is  from  the  State  that  an  ambassador  is  ac- 
credited, and  it  is  with  the  State  that  the  diplomatic  intercourse  is 
conducted. 

"  It  was  then  contended  that  the  republic  of  the  United  States  as 
a  body  politic,  being  plaintiff',  no  effectual  discovery  could  be  had 
from  it,  or  relief  against  it,  on  a  cross-bill ;  that  it  is  a  condition  of 
obtaining  relief  in  equity,  that  discovery  may  be  had  against  the 
plaintiff  on  a  cross-bill  filed  by  the  defendant ;  and  that  in  the  case 
of  a  corporation,  this  right  is  preserved  by  the  rule  that  its  officers 
may  be  made  co-defendants  for  discovery. 


CHAP.  II.]     UNITED    STATES    OF   AMERICA   V.  WAGNER.  81 

"  It  is  to  be  observed,  however,  with  regard  to  the  case  of  a  cor- 
poration, Avhere  tlie  court  making  an  exception  from  its  general 
rules  allows  persons  who  are  merely  witnesses  to  be  made  co- 
defendants  for  discovery,  that  the  exception  does  not  depend  on  any 
reasons  springing  out  of  the  nature  of  bills  and  cross-bills ;  for  the 
officers  of  a  corporation  may  be  sued  with  the  corporation,  even 
where  no  litigation  has  been  commenced  by  the  corporation ;  nor 
does  the  liability  of  the  officers  to  discovery  affect  the  question  who 
is  to  be  plaintiff  ;  for  the  cor[)oration  sues  for  the  corporate  property 
without  joining  any  officer  of  the  corporation  as  a  co-plaintiff. 

"  The  rule  of  the  court  as  to  corporations,  if  it  proves  anything, 
would  seem  to  show  that  in  a  cross-bill  against  the  United  States, 
there  would  be  a  right  to  join  some  officer  of  the  United  States  for 
the  purpose  of  discovery. 

"  The  Yice-Chancellor  appears  to  have  thought  that  the  President 
of  the  United  States  was  not  an  officer  who  could  thus  be  joined  as  a 
defendant,  and  I  do  not  desire  to  express  an  opinion  differing  in 
that  respect  from  the  opinion  of  his  Honor.  But  if  the  reference  to 
suits  against  corporations  does  not  establish  a  right  to  make  some 
officer  of  the  United  States  a  co-defendant  to  a  cross  bill,  it  is,  as 
I  thmk,  altogether  irrelevant.  It  is,  however,  in  my  opinion,  an 
error  to  suppose  that  the  right  of  a  plaintiff  to  sue  depends  in  any 
way  on  the  effectiveness  of  the  discovery  which  on  a  cross-bill  can 
be  exacted  from  him.  From  an  infant,  a  lunatic,  a  representative, 
trustee,  or  executor,  wholly  ignorant  of  the  occurrences  which  are  the 
subjects  of  the  suit,  no  practical  discovery  can  be  obtained,  and  yet 
they  can  maintain  a  suit. 

"  I  apprehend  that  the  only  rule  is,  that  the  person,  State,  or  cor- 
poration which  has  the  interest  must  be  the  plaintiff,  and  the  court 
will  do  the  best  the  law  admits  of  to  secure  to  the  defendant  such 
defensive  discovery  and  relief  as  he  may  be  entitled  to.  The  court 
can  in  all  cases  suspend  relief  on  the  original  bill  until  justice  is  in 
this  respect  done  to  the  defendant. 

"  The  case  of  the  Columbian  Govei'wnent  v.  Rothschild,  1  Sim.,  94, 
however,  was  said  to  be,  and  the  Vice-Chancellor  appears  to  have 
considered  that  it  was,  a  binding  authority  against  a  suit  in  this 
form.  I  cannot  so  view  that  case.  The  bill  was  filed  in  the  name  of 
the  State  of  Columbia,  and  if  this  bill  had  been  filed  in  the  name  of  the 
Government  of  the  United  States,  the  case  would  have  been  anala- 
gous.  Dealing  with  the  words  before  him,  Sir  John  Leach  appears 
to  have  held,  and  to  have  most  properly  held,  that  an  unknown 
and  undefined  body,  such  as  the  government  of  a  State,  could 
not  sue  by  that  quasi-corporate  name,  and  the  expressions  in  his 
6 


82  TEllUITOniAL   JURISDICTION.  [PART  I. 

judgment  seem  to  me  to  intimate  no  more  than  that  if  the  persons 
so  described  could  sue  at  all  they  nmst  come  forward  as  mdividuals, 
and  show  that  they  were  entitled  to  represent  their  State. 

"  Xothing  could  be  more  unreasonable  than  to  suppose  that  by 
observations  of  this  kind  Sir  John  Leach  meant  to  decide  for  the 
first  time,  that  a  republic  could  not  sue  in  its  own  name,  but  must 
have,  or  must  create,  some  ofiieer  to  maintain  a  suit  on  its  behalf. 

"  I  think  the  demurrer  in  this  case  must  be  overruled."  ^ 

1  Other  cases  bearing  upon  the  subject  of  this  section  are:  The  Kim/  of  Spain 
V.  Ilullet  and  Wlddcr,  1  Clarke  and  Finnelly,  348  (lS:3o) :— Don  Juste  Jose  de 
Machado  was  appointed  by  tlie  Spanisli  government  to  receive  money  for  that 
government  due  from  France.  Upon  receiving  it,  Macliado  brouglit  tlie  money  to 
England  and  deposited  a  considerable  portion  of  it  with  the  defendants.  The  King 
of  Spain  applied  to  Macliailofor  the  money,  but  this  demand  was  refused,  where- 
upon the  King  brought  a  bill  for  discovery  and  for  payment  of  the  money  into  court, 
against  Machado  (who  was  out  of  the  jurisdiction).  The  bill  was  demurred  to  for 
lack  of  parties,  etc.,  but  the  demurrer  was  overruled,  and  the  defendants  appealed, 
mainly  on  tlie  ground  that  it  had  never  been  held  that  a  foreign  sovereign  could 
sue  in  courts  of  equity  in  England,  and  on  principle  such  suit  should  not  be  allowed. 
This  app-^al  was  dismissed.  Fifteen  days  later,  the  defendants  filed  a  cross-bill  in 
Chancery,  the  rules  of  which  court  compel  the  identical  plaintiff  in  the  original 
bill  to  himself  swear  to  liis  answer  to  a  cross-bill.  The  plaintiff  asked  to  put  in  an 
answer  either  by  his  agent,  or  without  oatli  or  signatm-e. 

The  House  of  Lords  refused  to  deviate  from  the  practice  of  the  court. 

Uothschild  v.  (^ueen  of  Portu'jal,  3  Younge  and  Collyer  594,  (1839) : — The  bill 
was  brought  for  discovery  from  tlie  Queen  of  Portugal,  as  to  matters  stated  in  the 
bill,  and  for  a  commission  to  examine  witnesses  in  Portugal,  and  for  an  injunc- 
tion to  restrain  an  action  commenced  against  the  plaintiff  by  the  Queen  of  Portu- 
gal. This  action  was  in  contract,  the  Queen  suing  Messrs.  Rothschild  on  some 
bonds  deposited  with  them.  The  present  plaintiffs  now  seek  by  this  bill  for  dis- 
covery of  certain  correspondence  and  other  matters  to  aid  them  in  their  defence. 

The  Queen  demurs  to  the  bill  on  two  grounds,  (1)  that  as  a  sovereign,  the  suit 
was  not  maintainable  against  her — (2)  that  the  plaintiffs  had  made  no  case  for  dis- 
covery. 

The  first  point  only  is  considered. 

The  court  overruled  the  demurrer,  and,  in  the  course  of  its  decision.  Baron 
Alderson  said:  "  I  am  therefore  of  opinion  that  Her  Most  P^aithful  Majesty  being 
a  suitor  voluntarily  in  a  court  of  English  law,  becomes  subject,  as  to  all  matters 
connected  with  that  suit,  to  the  j  uiisdictiou  of  the  Coui't  of  Equity." 


CHAP.  II.]  CASE   OF   LESLIE,  BISHOP   OF   llOSS.  83 


Section  10. — l5r]vnT>nTiES  of  Diplomatic  Agents. 


(a)  Criminal  Jurisdiction. 

CASE  OF  LESLIE,  BISHOP  OF  ROSS,  1571. 

{Ward's  Law  of  Nations,  II.,  486.) 

Is  the  ambassador  of  a  deposed  sovereign  entitled  to  tlie  immunites  accorded  to 
diplomatic  agents  ? 

In  the  year  1567,  Leslie,  Bishop  of  Ross  came  to  tlie  court  of 
England,  in  behalf  of  Mary  Queen  of  Scots  ;  who,  although  she  was 
detained  prisoner  in  England,  was  allowed  to  send  him  to  plead  be- 
fore the  commissioners  appointed  to  examine  into  her  cause.  Noth- 
ing was  determined  by  the  commission :  but  Leslie  continued  at 
court,  and  exercised  the  office  of  ambassador  of  Mary  for  the  space 
of  one  year,  when,  being  concerned  in  raising  a  rebellion  against  the 
English  Government,  he  was  committed  to  the  custody  of  the  Bishop 
of  London.  From  this  he  was  soon  liberated,  and  returning  to  his 
function  of  ambassador,  continued  to  preserve  it  near  two  years 
longer.  At  that  time,  being  detected  in  the  attempt  to  raise  a  serious 
conspiracy  in  favor  of  Mary,  against  Elizabeth,  he  was  once  more 
committed ;  and  the  following  questions  concerning  him  were  pro- 
pounded to  David  Lewis,  Valentine  Dale,  William  Drury,  William 
Aubrey,  and  Henry  Jones,  learned  civil  lawyers:  1.  Whether  an 
ambassador,  procuring  an  insurrection  in  the  Prince's  country 
towards  whom  he  is  ambassador,  is  to  enjoy  the  privilege  of  an 
ambassador  ? 

2.  Whether  he  may  not,  Ju)'e  gentium  et  cimli  Romanorum,  be  pun- 
ished as  an  enemy,  traitor,  or  conspirator  against  that  Prince,  not- 
withstanding he  be  an  ambassador  ? 

To  these  two  questions  they  answered  :  "  Touching  these  two 
questions,  we  are  of  opinion,  that  an  ambassador  procuring  an  in- 
surrection or  rebellion  in  the  Prince's  comitry  towards  whom  he  is 
ambassador,  ought  not,  jure  gentium  et  civili  Ronianoruin,  to  enjoy 
the  privileges  otherwise  due  to  an  ambassador :  but  that  he  may, 
notwithstanding,  be  punished  for  the  same. 

3.  Whether,  if  the  Prince  be  deposed  by  the  common  authority  of 
the  realm,  and  another  elected  and  invested  of  that  crown,  the  solic- 


84  TERKITOKIAL    JURISDICTION.  [PART  I. 

itor  or  doer  of  his  causes,  and  for  bis  aid  (althougli  the  other  Prince 
do  suffer  such  one  to  be  in  his  realm),  is  to  be  accounted  an  ambas- 
sador, or  to  enjoy  the  privilege  of  an  ambassador  ? 

To  this  the}^  answered  :  "  We  do  think  that  tlie  solicitor  of  a  Prince 
lawfully  deposed,  and  another  being-  invested  in  his  place,  cannot 
have  the  privilege  of  an  ambassador ;  for  that  none  bat  Princes,  and 
such  other  as  have  s overeigiity,  may  have  ambassadors." 

4.  Whether  a  Prince,  coming  into  another  realm,  and  remaining 
there  under  custody  and  guard,  ought,  or  may  have  there  his  solici- 
tor of  his  causes,  and  if  he  have,  whether  he  is  to  be  accounted  au 
ambassador? 

To  this  they  answered :  "  We  do  think  that  a  Prince  coming  into 
another  Prince's  realm,  and  being  there  under  guard  and  custody, 
and  reuKiining  still  a  Prince,  may  have  a  solicitor  there  ;  but  whether 
he  is  to  be  accounted  an  ambassador,  that  dependeth  on  the  nature 
of  his  commission." 

5.  \Vhether,  if  such  a  solicitor  be  so  appointed  by  a  Prince  so  flying, 
or  coming  into  another  Prince's  realm — if  the  Prince  in  whose  realm 
the  Prince  so  in  guard,  and  his  solicitor  is,  shall  denounce,  or  cause 
to  be  denounced,  to  such  a  solicitor  or  to  such  a  Prince  under  cus- 
tody, that  his  said  solicitor — shall  hereafter  be  taken  for  no  ambas- 
sador— whether  then  such  solicitor  or  agent  can  justly  claim  the 
privilege  of  ambassador  ? 

To  this  they  answered  :  "  We  do  think  that  the  Prince  to  whom 
any  person  is  sent  in  message  of  ambassador,  may  for  causes  forbid 
him  to  enter  into  his  lands,  or  when  he  hath  received  him,  command 
him  to  depart ;  yet  so  long  as  he  doth  remain  in  the  realm,  and  not 
exceed  the  bounds  of  an  ambassador,  he  may  claim  his  privilege  as 
ambassador,  or  solicitor,  according  to  the  quality  of  his  commission." 
6.  Whether,  if  an  ambassador  be  confederate,  or  aider,  or  comforter 
of  any  traitor,  knowing  his  treason  toward  that  prince,  toward 
whom,  and  in  whose  realm  he  pretendeth  to  be  ambassador,  is  not 
punishable  by  the  Prince  in  whose  realm  and  against  whom  such 
treason  is  committed,  or  confederacy  for  treason  conspired  ? 

And  to  this  they  answered :  "We  do  think  that  an  ambassador 
aiding  and  comforting  any  traitor  in  his  treason  toward  the  Prince 
with  whom  he  pretendeth  to  be  ambassador  in  his  realm,  knowing 
the  same  treason,  is  punishable  by  the  same  Prince  against  whom 
such  treason  is  committed." 

These  answers  of  the  civilians  were  supposed  to  be  so  decisive  in 
favor  of  the  intentions  of  the  court,  that  the  Bishop  was  sent  for 
from  his  confinement  in  the  Isle  of  Ely,  and  after  being  sharply 
rebuked,  was  told  he  should  no  longer  be  considered  as  an   ambas- 


CHAP.  TI.]  MEXDOZA's    CASE.  S.> 

saclor,  but  severely  punished  as  one  who  well  deserved  it.  lie, 
however,  answered  witli  much  firmness  and  apparent  knowledge  of 
the  law  of  nations,  "that  he  was  the  ambassador  of  an  absolute 
Queen,  and  of  one  who  was  unjustly  deposed,  and  had,  according  to 
his  duty,  carefully  endeavored  to  effectuate  tlie  delivery  of  liis  I^rin- 
cess,  and  the  safety  of  both  kingdoms  ;  that  he  came  into  Kngland 
with  the  full  authority  of  an  ambassador,  upon  public  warrandise,  or 
safe  conduct  which  he  had  produced ;  and  that  the  sacred  privileges 
of  ambassadors  were  by  no  means  to  be  violated. " 

Burleigh,  in  return,  observed  "that  no  privilege  or  public  warran- 
dise could  protect  ambassadors  that  offend  against  the  i)ublic 
majesty  of  a  Prince,  but  they  are  liable  to  penal  actions  for  the  same  ; 
otherwise  lewd  ambassadors  miglit  attempt  the  life  of  Princes 
without  any  punishment."  Tlie  bishop  persisted  in  his  positions, 
and  maintained  that  the  privileges  of  ambassadors  had  never  been 
violated  via  juris  sed  viafacti,  not  by  regular  form  of  trial,  but  by 
violence ;  his  boldness,  or  the  true  view  which  he  seems  to  have 
taken  of  this  nice  subject,  appears  so  far  to  have  weighed  with  the 
Ministers  of  Elizabeth,  that  they  did  not  dare  to  put  him  to  death, 
with  the  Duke  of  Norfolk  and  other  conspirators,  but  after  detaining 
him  for  some  time  in  prison,  banished  him  the  country  in  1573. 


MENDOZA'S  CASE,  1584. 

{Ward's  Laio  of  Nations,  II.,  .522.) 

An  ambassador  cannot  be  punisbed,  but  may  be  sent  out  of  the  country. 

In  the  year,  1584,  Mendoza,  the  Spanish  ambassador  in  England, 
having  conspired  to  introduce  foreign  troops,  and  dethrone  the 
Queen,  it  was  a  matter  of  difficulty  how  he  should  be  punished. 
Had  the  council  thought  the  opinions  of  Lewis  Dale  and  the  other 
civilians  good  law,  they  probably  would  have  acted  upon  them  ;  for 
here  was  a  case  precisely  similar  to  that  on  which  they  had  been 
consulted.  They  however  took  the  opinions  of  the  celebrated  Alber- 
icus  Gentilis,  then  in  England,  and  of  Hottoman  in  France,  who  both 
asserted  that  an  ambassador,  though  a  conspirator,  could  not  be  put 
to  death,  but  should  be  referred  to  his  principal  for  punishment ;  or, 
(according  to  Hottoman)  sent  away  by  force  out  of  the  countr}'.  In 
consequence  of  this,  Mendoza  was  simply  ordered  to  depart  the 
realm,  and  a  commissioner  sent  to  Spain  to  prefer  a  complaint 
against  him.    (Camden,  296.) 


86  TEKlllTUlilAL   JUKISDICTION.  [PAKT  1. 


CASE  OF  DA  SA,  1653. 

{]Va7-(r  s  Laic  of  Nations,  II.,  ■>■]".) 

The  brother  of  an  ambassador  and  a  member  of  his  suite,  was  executed,  for 
sedition  and  murder. 

"  In  1653,  Don  Pantaleon  Sa,  brother  to  the  Portuguese  ambassador 
in  England,  quarrelled  with  an  Englishman,  Colonel  Gerhard,  about 
some  matter  in  the  new  exchange  ;  a  scuffle  ensued,  in  which  Ger- 
hard was  severely  wounded.  The  quarrel  w^as  renew^ed  the  next  day, 
at  the  same  place ;  but  this  time  Sa  came  with  fifty  followers,  all 
armed  to  the  teeth,  with  the  deliberate  intention  of  destroying  his 
adversary.  The  result  was,  that  many  English  were  wounded,  and 
one  person  (a  Mr.  Greenway),  accidentally  present,  killed ;  that  the 
Guards  w^ere  called  in,  and  fired  upon  by  the  Portuguese,  several  of 
whom  they  took  to  prison ;  the  rest,  with  Sa,  took  refuge  in  the 
hotel  of  the  Portuguese  ambassador.  The  aml)assador  w^as  after- 
wards required  to  deliver  up  others,  of  the  delinquents,  which  re- 
quest he  complied  with,  and  his  brother  was  among  them.  He 
interceded  for  his  brother ;  but  Cromwell  resolved,  if  he  could,  to 
try  him  by  the  law  of  the  land.  He,  therefore,  consulted  the  most 
eminent  of  the  professors  of  the  civil  law  to  settle  hotc  such  a  bar- 
barous murder  might  be  punished.  But  these  disagreeing  among 
themselves,  he  left  the  decision  of  the  affair  to  a  court  of  delegates, 
consisting  of  the  Chief  Justice  and  two  other  judges,  three  noble- 
men, and  three  doctors  of  the  civil  law.  Before  these  Sa  w'as 
examined. 

"  At  first  he  was  supposed  to  be  a  colleague  in  the  embassy,  and 
he  vaunted  himself  that  he  w' as  the  king's  ambassador,  '  and  subject 
to  the  jurisdiction  of  no  one  else.'  He  was  made,  however,  to  pro- 
duce his  credentials,  by  Avhich  all  that  could  be  proved  w' as  that  the 
king  intended  in  a  little  time  to  recall  his  brother,  and  to  give  him 
a  commission  to  manage  his  affairs  in  England.  This  being  judged 
insufficient  to  prove  him  an  ambassador,  he  was,  without  any  further 
regard  to  the  privilege  of  that  character,  ordered,  as  w^ell  as  all  the 
rest,  to  plead  to  the  indictment. 

"  Such  is  the  accurate  statement  of  the  affair  till  it  came  to  a  jury, 
as  it  appears  from  the  account  of  Zouch,  a  civilian  of  eminence  and 
himself  a  delegate  in  the  cause. 

"It  is  evident,  from  this  account  of  the  matter,  and  one  of  more 


cHAr.  11.]  gyllenboiig's  case.  87 

authority  can  hardly  be  met  with,  that  had  Sa  been  actually  ma- 
bassddor,  instead  of  forming  a  part  of  the  sidte^  the  proceedings 
against  him  would  have  been  the  same  with  those  in  the  cases  cited 
above.  All,  therefore,  that  can  fairly  be  drawn  from  this  precedent, 
as  to  the  decision  of  the  then  existimj  law  of  En(/h(nd,  is  that  the 
suite  of  an  ambassador,  if  they  committed  nnnxler,  were  liable  to  be 
tried  for  it  by  the  courts  of  the  country.  Zouch  asserts  expressly, 
that  his  own  opinion  upon  the  main  question  agreed  Avith  that  of 
Grotius  and  the  best  authors,  as  to  the  exemption  of  ambassadoi-s 
themselves ;  and  it  should  appear  from  his  SoliUio  Quaistionis, 
that  if  Sa  could  have  proved  that  he  was  an  actual  ambassador,  his 
plea  before  the  delegates  would  have  been  allowed." 


GYLLENBORG'S  CASE,  1717. 

{Ward's   Laio  of  Nfitions,  II.,  'AS.) 

It  was  held  in  this  case,  that  if  an  ambassador  conspires  to  overtlirow  the  gov- 
ernment to  which  he  is  accredited,  he  may  he  arrested;  and  tliat  liis  papers  may- 
be seized. 

On  the  29th  of  January,  1717,  the  government  of  England  having 
certain  information  of  a  conspiracy  to  invade  the  country  and  de- 
throne the  King,  contrived  by  Gyllenborg,  the  ambassador  of  Sweden, 
at  that  time  at  peace  with  Great  Britain ;  they  ordered  the  arrest  of 
that  minister,  which  was  accordingly  effected.  General  Wade  and 
Colonel  Blakeney  to  whom  the  charge  was  entrusted,  found  hiui 
making  up  dispatches,  which  tliey  told  him  they  had  orders  to  seize  ;. 
and  they  even  insisted  upon  searching  his  cabinet,  which,  upon  the 
refusal  of  his  lady  to  deliver  the  keys,  they  actually  broke  open.. 
Gyllenborg  complained  of  these  proceedings,  as  a  direct  breach  of 
the  law  of  nations,  and  some  of  the  foreign  ministers  at  the  court 
of  London  expressed  themselves  to  the  same  effect ;  upon  which  the 
secretaries  of  state,  Methuen  and  Stanhope,  wrote  circular  letters 
to  them,  to  assign  reasons  for  the  arrest,  which  satisfied  them  all 
except  Montleone,  the  Spanish  ambassador,  avIio  in  his  answer  ob- 
served, that  he  was  sorry  no  other  way  could  be  fallen  upon  for  pre- 
serving the  peace  of  the  kingdom,  than  that  of  the  arrest  of  a 
public  minister,  and  the  seizure  of  his  papers,  which  are  the  reposi- 
tories of  his  secrets,  two  facts  which  seemed  sensibly  to  wound  the 
law  of  nations.  The  observation,  however,  answers  itself;  since 
the  confession  that  there  was  ?^o  otherxoay,  proves  that  this  extremity 
was  the  simple  consequence  of  those  universal  laws,  which  ever  will 


88  TERRITORIAL   JURISDICTION.  [PART  I. 

and  must  overcome  all  other  ;  I  mean  legitimate  necessity,  and  self- 
defence. 


PRIXCE  CELLAMARE'S  CASE,  1718. 

(ilarte)rs  Causes  Cvlchres,  I.,  149.) 

For  conspiring  against  the  state,  an  ambassador  was  arrested  and  conducted 
across  the  frontier  into  his  own  country. 

Prince  Cellamare,  the  ambassador  of  Spain  at  Paris,  was  the  in- 
strument of  Alberoni's  hostile  intrigues  against  the  regent. 

He  was  in  close  correspondence  with  many  of  the  malcontent 
French  nobility,  but  his  chief  confidants  were  the  Duke  and  Duchess 
of  Maine,  who  had  never  forgiven  the  Duke's  removal  from  the  posts 
of  authority  assigned  to  him  by  the  Avill  of  Louis  XIV. 

A  plot  was  organized  (though  it  seems  doubtful  how  far  the 
design  was  seriously  entertained)  for  carrying  off  the  regent  into 
Spain,  and  placing  Philip  V.  at  the  head  of  the  French  Government. 
Assistance  was  expected  from  Brittany,  which  was  just  then  in 
agitation  in  consequence  of  an  attempt  against  the  ancient  priv- 
ileges of  the  province ;  and  a  fleet  was  actually  dispatched  from 
Spain  to  support  the  insurrection.  The  confederates,  however,  were 
betrayed  to  Dubois ;  an  agent  of  Cellamare  was  seized  at  Poitiers  on 
his  way  to  Madrid ;  and  dispatches  of  which  he  was  the  bearer  fully 
compromised  all  the  principal  parties  to  the  scheme. 

A  detachment  of  troops  was  sent  to  guard  the  hotel  of  the  am- 
bassador, while  the  Minister  of  War,  Le  Blanc,  and  the  Minister  of 
Foreign  Affairs,  Dubois,  made  an  examination  of  his  papers. 

Cellamare  appealed  to  the  other  ambassadors  resident  in  Paris, 
but  regarding  such  a  conspiracy  as  depriving  him  of  all  privileges, 
they  refused  to  interfere. 

On  the  other  hand,  to  justify  these  extreme  measures,  the  regent 
published  a  circular  letter  to  the  foreign  ministers  setting  forth  the 
facts  of  tlie  conspiracy'',  and  the  imminent  danger  to  the  state. 

Some  days  later,  letters  of  Cellamare  were  made  public,  which 
proved  conclusively  his  part  in  the  conspiracy. 

Cellamare  was  then  confined  in  the  chateau  De  Blois,  with  orders 
to  detain  him  there  till  the  French  ambassador  at  Madrid  should 
arrive  in  France. 

On  the  news  of  the  arrival  of  the  French  ambassador  at  Bayonne, 
the  order  was  given  to  conduct  Cellamare  to  the  Spanish  frontier, 
and  this  order  was  carried  out  on  the  6th  of  March,  1719. 


CHAP.  II.]  AMBASSADOR    OF   PETEli    THE   GREAT.  89 


(b)    Civil  Jurisdiction. 

THE  AMBASSADOR  OF  PETER  TILE  GREAT,  1708. 

(Blackstone'' s  Commentaries,  Book  I.,  Chap.  VII.) 

Neither  an  ambassador  nor  any  of  liis  suite  can  be  prosecuted  for  any  debt  or 
contract  in  the  courts  of  the  country  in  wliich  they  reside. 

"In  respect  to  civil  suits,  all  the  foreign  jurists  agree,  that  neither 
an  ambassador,  nor  any  of  his  train  or  comites,  can  be  prosecuted  for 
any  debt  or  contract  in  the  courts  of  that  kingxiom  wherein  he  is 
sent  to  reside.  Yet  Sir  Edward  Coke  maintains,  that,  if  an  am- 
bassador make  a  contract  which  is  good  Jure  gentium,  he  shall 
answer  for  it  here.  But  the  truth  is,  so  few  cases,  if  any,  had  arisen, 
wherein  the  privilege  was  either  claimed  or  disputed,  even  with  re- 
gard to  civil  suits  that  our  law-books  are,  in  general,  quite  silent 
upon  it  previous  to  the  reign  of  Queen  Anne ;  when  an  ambassador 
from  Peter  the  Great,  Czar  of  Muscovy,  was  actually  arrested  and 
taken  out  of  his  coach  in  London,  for  a  debt  of  fifty  pounds  wliich 
he  had  there  contracted.  Instead  of  applying  to  be  discharged  upon 
his  privilege,  he  gave  bail  to  the  action,  and  the  next  day  complained 
to  the  Queen.  The  persons  who  were  concerned  in  the  arrest  were 
examined  before  the  privy  council,  of  which  the  Lord  Chief  Justice 
Holt  was  at  the  same  time  sworn  a  member,  and  seventeen  were  com- 
mitted to  prison :  most  of  them  were  prosecuted  by  information  in 
the  Court  of  Queen's  Bench  at  the  suit  of  the  attorney-general,  and  at 
their  trial  before  the  Lord  Chief  Justice  were  convicted  of  the  facts  by 
the  jury,  reserving  the  question  of  law,  how  far  those  facts  were 
criminal,  to  be  afterwards  argued  before  the  judges  ;  which  question 
Avas  never  determined.  In  the  meantime  the  Czar  resented  this 
affront  very  highly,  and  demanded  that  the  sheriff  of  Middlesex  and 
all  others  concerned  in  the  arrest  should  be  pimished  with  instant 
death.  But  the  Queen,  to  the  amazement  of  that  despotic  court, 
directed  her  secretary  to  inform  him  '  that  she  could  inflict  no  pun- 
ishment upon  any,  the  meanest  of  her  subjects,  unless  warranted  by 
the  law  of  the  land  ;  and  therefore  was  persuaded  that  he  M'ould 
not  insist  upon  impossibilities.'  To  satisfy,  however,  the  clamors 
of  the  foreign  ministers,  who  made  it  a  common  cause,  as  well  as  to 
appease  the  wrath  of  Peter,  a  bill  was  brought  into  parliament,  and 
afterwards  passed  into  a  law,  to  prevent  and  punish  such  outrage- 
ous insolence  for  the  future.    And  with  a  copy  of  this  act,  elegantly 


90  TERRITORIAL   JURISDICTIOX.  [PART  I. 

engrossed  and  illuminated,  accompanied  by  a  letter  from  the  Queen, 
an  ambassador  extraordinary  was  commissioned  to  appear  at  Mos- 
cow, who  declared  '  that  though  her  majesty  could  not  inflict  such 
a  punishment  as  was  required,  because  of  the  defect  in  that  partic- 
ular of  the  former  established  constitutions  of  her  kingdom,  yet, 
with  the  unanimous  consent  of  the  parliament,  she  had  caused  a 
new  act  to  be  passed,  to  serve  as  a  law  for  the  future.'  This  humil- 
iating step  Avas  accepted  as  a  full  satisfaction  by  the  Czar  ;  and  the 
offenders,  at  his  request,  were  discharged  from  all  farther  prosecu- 
tion. 

"  This  statute  recites  the  arrest  which  had  been  nuuhi  in  '  contempt 
of  the  protection  granted  by  her  majesty,  contrary  to  the  law  of  na- 
tions, and  in  prejudice  of  the  rights  and  privileges,  which  ambassa- 
dors and  other  public  ministers  have  at  all  times  been  thereby  pos- 
sessed of,  and  ought  to  be  kept  sacred  and  inviolable : '  wherefore  it 
enacts  that  for  the  future  all  process  whereby  the  person  of  any  am- 
bassador, or  of  his  domestic  or  domestic  servant  may  be  arrested,  or 
his  goods  distrained  or  seized,  shall  be  utterly  null  and  void ;  and  the 
persons  prosecuting,  soliciting,  or  executing  such  process  shall  be 
deemed  violaters  of  the  law  of  nations,  and  disturbers  of  the  public 
repose ;  and  shall  suffer  such  penalties  and  corporal  punishment  as 
the  lord  chancellor  and  the  two  chief  justices,  or  any  two  of  them, 
shall  think  fit.  But  it  is  expressly  provided,  that  no  trader  within 
the  description  of  the  bankrupt  laws,  who  shall  be  in  the  service  of 
any  ambassador,  shall  be  privileged  or  protected  by  this  act ;  nor 
shall  anyone  be  punished  for  arresting  an  ambassador's  servant,  un- 
less his  name  be  registered  with  the  secretary  of  state,  and  by  him 
transmitted  to  the  sheriffs  of  London  and  Middlesex.  Exceptions 
that  are  strictly  conformable  to  the  rights  of  ambassadors  as  observed 
in  the  most  civilized  countries.  And,  in  consequence  of  this  statute, 
thus  declaring  and  enforcing  the  law  of  nations,  these  privileges  are 
now  held  to  be  part  of  the  law  of  the  land,  and  are  constantly  allowed 
in  the  courts  of  common  law." 


TAYLOR  V.  BEST. 

CoMMox    Pleas,    1S54. 

(14  Common  Bench,  4S7.) 

A  public  minister  who  engages  in  trade,  in  the  country  to  which  he  is  accred- 
ited, does  not  thereby  forfeit  the  privileges  and  immunities  accorded  to  diplomatic 
agents.  But  when  he  voluntarily  appears,  in  compliance  with  a  writ,  and  submits 
himself  to  the  jurisdiction,  the  court  will  not  interfere  for  his  relief. 


CHAP.  II.]  TAYLOR    V.  BEST.  HI 

This  was  an  action  bronglit  l)y  the  plaintiff  af:fainst  tlie  four  defend- 
ants, to  recover  250^  deposited  in  their  hands  for  sliares  in  an  in- 
tended Sulphate  company,  of  which  they  were  directors. 

A  writ  being  issued,  the  plaintitt''s  attorney  wrote  to  the  defendant 
Drouet,  asking  the  name  of  his  solicitor  to  whom  he  should  send  the 
i:»rocess  for  an  undertaking  to  appear. — M.  Drouet  instructs  his  attor- 
ney to  write  to  the  plaintiff's  attorney,  rec^uesting  that  the  process  be 
sent  to  him.  The  cause  came  to  an  issue,  notice  of  trial  was  given, 
appearance  duly  entered  and  Drouet  obtained  a  rule  for  a  special 

jury. 

Two  days  later  Drouet  took  out  a  summons  on  the  other  parties  to 
the  suit  to  show  why  all  proceedings  should  not  be  stayed,  or  why  his 
name  should  not  be  struck  out  of  the  proceedings  on  the  groiuid  that 
he  was  protected  from  such  a  suit  by  reason  of  his  being  a  public 
minister,  first  secretary  of  the  Belgian  legation  at  the  court  of  St. 
James. 

The  defendant  Drouet  obtained  a  rule  rn'.n. 

Jehvis,  C.  J.  : — "This  case  was  very  elaborately  argued  yesterday, 
and  the  importance  of  the  subject  induced  the  court  to  take  time  to 
look  into  the  variotts  authorities  which  were  referred  to.  I  am  of 
o[)inion  that  the  rtile  shotild  be  discharged.  There  is  no  doubt  that 
the  defendant  Drouet  fills  the  character  of  a  public  minister  to  ^^■hich 
the  privilege  contended  for  is  applicable :  and  I  think  it  is  equally 
clear,  that,  if  the  privilege  does  attach,  it  is  not,  in  the  ease  of  an  am- 
bassador or  public  minister,  forfeited  by  the  party's  engaging  in  trade, 
as  it  would,  by  virtue  of  the  proviso  in  the  7  Anne,  c.  12,  s.  5,  in  the 
case  of  an  ambassador's  servant.  If  an  ambassador  or  public  minis- 
ter, during  his  residence  in  this  country,  violates  the  character  in 
which  he  is  accredited  to  our  court,  by  engaging  in  commercial  trans- 
actions, that  may  raise  a  question  between  the  government  of  this 
country  and  that  of  the  country  by  which  he  is  sent ;  but  he  does  not 
thereby  lose  the  general  privilege  which  the  law  of  nations  has  con- 
ferred upon  persons  filling  that  high  character, — the  proviso  in  the 
statute  of  Anne  limiting  the  privilege  in  cases  of  trading  applying 
only  to  the  servants  of  the  embassy. 

"  For  this,  Barbuit's  Case,  Cas.  Temp.  Talbot,  281,  is  an  authority. 

"  Admitting,  then,  that  M.  Drouet  is  a  person  entitled  to  the 
privileges  and  immunities  which  the  law  of  England  accords  to  am- 
bassadors from  foreign  friendly  courts,  and  that  he  does  not  forfeit 
them  by  engaging  in  commercial  ventures, — the  question  is  whether 
he  is,  under  all  the  circumstances  disclosed  by  the  aflidavit  before  us, 
entitled  to  the  privilege  which  he  claims. 

"  Although  it  is  admitted  that  no  process  can  be  available  against 


92  TEKRITUKIAL   JUKISDICTIOX.  [l'Ai;T  I. 

the  person  or  the  goods  of  a  foreign  aml^assador  or  nihiister,  no  case 
has  been  cited  to  show  that  an  application  in  the  present  form,  to 
stay  all  proceedings,  is  available  in  the  courts  of  this  country.  On 
the  contrary,  in  the  case  of  ambassadors'  servants,  it  appears  that 
the  practice  has  been,  not  to  stay  the  proceedings  altogether,  but  to 
discharge  the  party  from  custody,  on  entering  a  commDu  appearance. 
The  case  of  Crosse  v.  Talbot,  8  Mod.  288,  recognizes  that  as  the  true 
principle.  The  motion  on  the  part  of  the  defendant  there  was  to  set 
aside  the  bail-bond  given  upon  his  arrest,  on  his  filing  common  bail ; 
and  the  rule  was  discharged,  on  the  ground  that  the  party  did  not 
bring  himself  strictly  within  the  privilege  allowed  to  the  servant  of 
an  ambassador ;  the  court  holding  that,  to  entitle  him  to  the  privilege, 
he  ought  to  be  a  domestic  servant,  and  really  to  exercise  the  duties 
of  the  office,  and  that  his  being  a  mere  nominal  servant  is  not  enough. 
And  the  reporter  adds, — '  A  great  many  cases  have  since  been  de- 
termined upon  the  same  principle  ;  but  it  was  in  these  cases  held, 
that  the  idea  of  a  domestic  servant  was  not  confined  to  his  living 
in  a  foreign  minister's  house,  provided  he  was  a  real  servant,  and 
actually  performed  the  service.'  The  course,  therefore,  seems  to 
have  been  in  these  cases,  not  to  move  to  stay  all  proceedings,  but  to 
move  to  set  aside  or  cancel  the  bail-bond,  upon  the  defendant's  filing 
common  bail.  Xo  case  has  been  cited  of  a  motion  to  stay  the  pro- 
ceedings, where  the  personal  liberty  of  the  applicant  has  not  been 
interfered  with.  Further,  I  am  aware  of  no  case  in  which,  where 
there  are  several  defendants,  and  the  action  has  been  allowed  to  go 
on  to  the  verge  of  trial,  the  proceedings  have  been  stayed  upon  the 
application  of  one  of  the  defendants. 

"  Such  a  course  would  be  obviously  unjust  to  the  other  defendants, 
seeing  that  the  expense  they  had  already  incurred  would  thereby  be 
rendered  useless.  Without,  however,  dwelling  upon  that,  it  seems  to 
me  that  this  motion  nuist  fail,  upon  the  merits. 

"The  action  is  brought  against  four  defendants, — the  writ  being 
sued  out  against  M.  Drouet  and  the  three  others  as  joint-contractors. 
No  doubt,  the  plaintiff  was  bound,  at  the  peril  of  a  plea  in  abatement, 
to  sue  all.  The  writ  being  issued,  nothing  is  done  upon  it  which  can 
at  all  interfere  with  the  exercise  by  31.  Drouet  of  his  diplomatic 
functions,  or  with  his  personal  comfort  or  dignity.  But,  knowing 
that  a  writ  has  issued,  or  having  reason  to  believe  that  it  is  about 
to  issue,  he  causes  his  attorney  to  write  to  the  plaintiff's  attorney, 
desiring  that  the  process  may  be  sent  to  him  for  an  undertaking  to 
appear.  He,  therefore,  voluntarily  attorns  and  submits  himself  to 
the  jurisdiction  of  the  court.  Under  these  circumstances,  I  think 
he  cannot  be  permitted  now  to  complain  that  the  suit  has  been  im- 


CHAP.  II.]  TAYLOR    V.  BEST.  93 

properly  instituted  against  him.  On  the  contrary,  I  think,  that,  by 
analogy  to  the  doctrine  cited  from  the  learned  jurists  whose  works 
have  been  so  laboriously  consulted,  the  action  may  well  be  main- 
tained. 

'^  It  is  said, — and  perhai)s  truly  said, — that  an  ambassador  or  foreign 
minister  is  privileged  from  suit  in  the  courts  of  the  country  to  which 
he  \.i  accredited,  or,  at  all  events,  from  being  proceeded  against  in  a 
maimer  which  may  ultimately  result  in  the  coercion  of  his  person,  or 
the  seizure  of  his  personal  effects  necessary  to  his  comfort  and 
dignity  ;  and  that  he  cannot  be  compelled,  iji  invitum,  or  against 
his  will,  to  engage  in  any  litigation  in  the  courts  of  the  country  to 
Avhich  he  is  sent.  But  all  the  foreign  jurists  hold,  that,  if  the  suit 
can  be  founded  without  attacking  the  personal  liberty  of  the  ambas- 
sador, or  interfering  with  his  dignity  or  personal  comfort,  it  may 
proceed.  Various  passages  have  been  cited  to  show,  that,  hi  countries, 
where  the  Civil  law  prevails,  and  where  jurisdiction  can  be  founded 
by  a  proceeding  in  rem  in  the  first  instance,  where  there  are  houses 
or  lands,  which  are  immovable,  that  may  be  taken  to  found  the 
jurisdiction,  the  suit  may  proceed.  Movable  goods,  too,  which 
are  unconnected  with  the  personal  comfort  and  dignity  of  the  am- 
bassador, may  be  taken  for  the  same  purpose. 

"And  when  we  consider  the  effect  of  the  proceeding,  and  what  may 
be  done  by  the  party  sued,  there  seems  to  be  no  substantial  distinc- 
tion between  the  two  modes :  because,  although  it  is  true,  that,  in 
countries  where  the  Civil  law  prevails,  the  proceeding  is  in  rem^  and 
the  means  of  litigation  between  the  parties  incidentally  established 
with(^ut  any  molestation  or  interference  with  the  person  of  the  de- 
fendant ;  yet  if  the  defendant  chooses  to  appear,  for  the  purpose  of 
protecting  his  goods  and  investigating  the  matter  in  dispute,  he  may 
convert  that  which  was  originally  a  proceeding  in  rem  into  a  pro- 
ceeding in  personam.  And  such  is  commordy  the  course  in  the 
Scotch  courts.  If,  therefore,  as  in  Holland,  and  in  some  other  countries, 
where  goods  may  be  taken  for  the  purpose  of  founding  jurisdiction, 
the  defendant  may  come  in  and  convert  the  proceeding  in  rem  into 
a  proceeding  in  personcun.,  and  so  attorn  or  submit  himself  to  the 
jurisdiction,  it  seems  to  me  that  there  is  no  distinction  between  that 
case  and  the  present,  where  there  has  been  no  attempt  on  the  part 
of  the  plaintiff  to  disturl)  the  comfort  or  interfere  with  the  personal 
liberty  of  the  foreign  minister ;  but  where  there  has  been  the  mere 
issuing  of  a  writ  to  which  he  has  voluntarily  appeared,  and  thus  sub- 
mitted himself  to  the  jurisdiction,  I  do  not  feel  myself  at  all  pressed 
by  the  argument  urged  by  Mr.  Willes,  that  the  privilege  in  question, 
being  the  privilege  of  the  sovereign,  cannot  be  abandoned  or  waived 


f4  TERRITOniAL   JURISDICTION.  [I'ART  I. 

by  the  ambassador;  for,  when  the  authorities  upon  which  that  argu- 
ment is  sought  to  be  sustained,  come  to  be  examined,  tliey  do  not  shew 
that  the  ambassador  may  not  submit  himself  to  tlie  jurisdiction  for 
the  purpose  of  having  tlie  matter  in  difference  investigated  and 
ascertained ;  but  only  that  the  sacred  character  of  the  person  of  the 
ambassador  cannot  be  affected  by  any  act  or  consent  on  liis  part ; 
and  that,  by  interfering  with  the  pei'son  of  the  ambassador,  or  with 
the  goods  which  are  essential  to  the  personal  comfort  and  dignity 
of  his  position,  you  are  in  effect  attacking  the  privilege  of  his  master. 

That,  however,  is  not  the  case  here ;  for  anything  that  appears, 
M.  Drouet  is  sued, — he  being  a  joint-contractor  and  so  a  necessary 
party  to  the  action, — merely  for  the  purpose  of  ascertaining  the  lia- 
bility of  the  other  defendants.  If  he  had  not  thought  fit  to  attorn 
to  the  jurisdiction,  but  had  allowed  judgment  to  go  against  liim  by 
default,  non  constat  that  anything  would  have  been  done  upon  the 
judgment,  otherwise  than  by  enforcing  it  against  the  other  defend- 
ants. If  any  ca.  sa.  or  fi^fa.  were  issued  against  him  upon  the  judg- 
ment, tlie  statute  of  Anne  would  have  applied,  and  the  court  might 
have  been  called  upon  to  interfere  to  prevent  its  being  put  in  force 
against  him.  It  seems  to  me  that  M.  Drouet  here  has  courted  the 
jurisdiction,  and  that  we  ought  not  to  interfere." 

Cresswell,  J.,  and  Williams,  J.,  concurred. 

Pearson,  for  the  plaintiff,  asked  for  costs. 

Per  Curiam. — We  say  nothing  about  costs. 

Rule  discharged. 


WIIEATOX'S  CASE. 

{Wheatoii' H  International  Law,  Sd  Ed.) 

Where  the  laws  of  a  state  give  to  a  landlord  the  right  to  detain  the  personal 
effects  of  a  tenant,  for  non-payment  of  rent  or  for  damages  to  the  premises,  may 
this  right  be  enforced  against  the  arabassaJor  of  a  foreign  state  ? 

The  Prussian  Civil  Code  declares,  that  "  the  lessor  is  entitled,  as 
a  security  for  the  rent  and  other  demands  arising  under  the  con- 
tract, to  the  rights  of  a  Pfandylauhifier,  upon  the  goods  brought  by 
the  tenant  upon  the  premises,  and  there  remaining  at  the  expiration 
of  the  lease." 

The  same  code  defines  tlie  nature  of  tlie  right  of  a  creditor  whose 
debt  is  thus  secured.  "  A  real  right,  as  to  a  thing  belonging  to  an- 
other, assigned  to  any  person  as  security  for  a  debt,  and  in  virtue  of 


CHAP.  II.]  WHEATOX'S   CASE.  95 

which  he  may  demand  to  be  satisfied  out  of  the  substance  of  the 
thing-  itself,  is  called  CnterpfcDuhrec/U.''' 

Under  this  law,  the  proprietor  of  the  house  in  which  the  minister 
of  the  United  States  accredited  at  the  court  of  Berlin  resided, 
claimed  the  right  of  detaining  the  goods  of  the  minister  found  on  the 
premises  at  the  expiration  of  the  lease,  in  order  to  secure  the  pay- 
ment of  damages  alleged  to  be  due,  on  account  of  injuries  done  to 
the  house  during  the  contract.  The  Prussian  government  decided 
that  the  general  exemption,  under  the  law  of  nations,  of  the  personal 
property,  of  foreign  ministers  from  the  local  jurisdiction,  did  not 
extend  to  this  case,  where,  it  was  contended,  the  right  of  detention 
was  created  by  the  contract  itself,  and  l)y  the  legal  effect  given  to  it 
by  the  local  law.  In  thus  granting  to  the  proprietor  the  rights  of  a 
creditor  whose  debt  is  secured  by  hypothecation  (Pfandglaubiger,) 
not  only  in  respect  to  the  rent,  but  as  to  all  other  demands  arising 
under  the  contract,  the  Prussian  Civil  Code  confers  upon  him  a  -real 
right  as  to  all  the  effects  of  the  tenant,  which  may  be  found  on  the 
premises  at  the  expiration  of  the  lease,  by  means  of  which  he 
may  retain  them,  as  a  security  for  all  his  claims  derived  from  the 
contract. 

It  was  stated,  by  the  American  minister,  that  this  decision  placed 
the  members  of  the  corps  diplomatijpie^  accredited  at  the  Prussian 
court,  on  the  same  footing  with  the  subjects  of  the  country,  as  to 
the  right  which  the  Prussian  Code  confers  upon  the  lessor  of  dis- 
training the  goods  of  the  tenant,  to  enforce  the  perforniance  of  the 
contract.  The  only  reason  alleged  to  justify  such  an  exception  to 
the  general  principle  of  exemption  was,  that  the  right  in  question 
was  constituted  by  the  contract  itself.  It  was  not  pretended  that 
such  an  exception  had  been  laid  down  by  any  writer  of  authority  on 
the  law  of  nations;  and  this  consideration  alone  presented  a  strong 
objection  against  its  validity,  it  being  notorious  that  all  the  excep- 
tions to  the  principle  were  carefully  enumerated  by  the  most  es- 
teemed public  jurists.  ISTot  only  is  such  an  exception  not  confirmed 
by  them,  but  it  is  expressly  repelled  by  these  writers.  Nor  could 
it  be  pretended  that  the  practice  of  a  single  government,  in  a  single 
case,  was  sufiicient  to  create  an  exception  to  a  principle  which  all 
nations  regarded  as  sacred  and  inviolable. 

Doubtless,  by  the  Prussian  Code,  and  that  of  most  other  nations, 
the  contract  of  hiring  gives  to  the  proprietor  the  right  of  seizing,  or 
detaining  the  goods  of  the  tenant,  for  the  non-payment  of  rent,  or 
damages  incurred  by  injuries  done  to  the  premises.  But  the  ques- 
tion here  was,  not  what  are  the  rights  conferred  by  the  municipal 
laws  of  the  country  upon  the  proprietor,  m  respect  to  the  tenant 


93  TEKKITOIUAL    JUKISDICTION.  [PAllT  I. 

who  is  a  subject  of  that  country ;  but  what  are  those  rights  in  re- 
spect to  a  foreign  minister,  M^liose  dwelling  is  a  sacred  asylum ;  whose 
person  and  property  are  entirely  exempt  from  the  local  jurisdiction; 
and  who  can  only  be  compelled  to  perform  his  contracts  by  an  ap- 
peal to  his  own  government.  Here  the  contract  of  hiring  consti- 
tutes, 2^^r  se,  the  right  in  question,  in  this  sense  only,  that  the  law 
furnishes  to  one  of  the  parties  a  special  remedy  to  compel  the  other 
to  perform  its  stipulations.  Instead  of  compelling  the  lessor  to  re- 
sort to  a  personal  action  against  the  tenant,  it  gives  him  a  lien  upon 
the  goods  found  on  the  premises.  This  lien  may  be  enforced 
against  the  subject  of  the  country,  because  their  goods  are  subject 
to  its  laws  and  its  tribunals  of  justice ;  but  it  cannot  be  enforced 
against  foreign  ministers  resident  in  the  country,  because  they  are 
subject  neither  to  the  one  nor  to  the  other. 

To  deprive  a  minister  of  his  privilege  in  this  case  would  be  to 
deprive  him  of  that  mdependence  and  securitj^  which  are  indispen- 
sably necessary  to  enable  him  to  fulfill  the  duties  he  owes  to  his 
own  government.  If  a  single  article  of  furniture  may  be  seized,  it 
may  all  be  seized,  and  the  minister,  with  his  family,  thus  be  deprived 
of  the  means  of  subsistence.  If  the  sanctity  of  his  dwelling  may  be 
violated  for  this  purpose,  it  may  be  violated  for  any  other.  If  his 
j)rivate  property  may  be  taken  upon  this  pretext,  the  property  of  his 
government,  and  even  the  archives  of  the  legation,  may  be  taken 
upon  the  same  pretext. 

In  reply  to  these  arguments  it  was  urged,  on  behalf  of  the  Prus- 
sian government,  that  if,  in  the  present  case  any  Prussian  authority 
had  pretended  to  exercise  a  right  of  jurisdiction,  either  over  the  per- 
son of  the  minister  or  his  property,  the  solution  of  the  question  would 
doubtless  appertain  to  the  law  of  nations,  and  it  must  be  deter- 
mined according  to  the  precepts  of  that  law.  But  the  only 
question  in  the  present  case  could  be,  what  are  the  legal  rights 
established  by  the  contract  of  hiring,  between  the  proprietor 
and  the  tenant.  To  determme  this  question,  there  could  be  no 
other  rule  than  the  civil  law  of  the  country  where  the  contract  was 
made,  and  where  it  was  to  be  executed,  that  is,  in  the  present 
case,  the  civil  code  of  Prussia. 

The  controversy  having  been  terminated,  as  between  the  j^arties, 
by  the  proprietor  of  the  house  restoring  the  effects  which  had  been 
detained,  on  the  payment  of  a  reasonable  compensation  for  the 
injur}^  done  to  the  premises,  the  Prussian  government  proposed  to 
the  American  government  the  following  question  : 

"  If  a  foreign  diplomatic  agent,  accredited  near  the  United  States, 
enters,  of  his  own  accord,  and  in  the  prescribed  forms,  into  a  con- 


CHAP.  II.]  CASE    OF    BAUOX    DE    WnECMT.  97 

tract  with  an  American  citizen ;  and  if,  nnder  snch  contract,  the 
laws  of  the  country  give  to  such  citizen,  in  a  given  case,  a  rml  rhjht 
{droit  reel,)  over  personal  property  {hiens  mobiliers,)  belonging  to  such 
agent :  does  the  American  government  assume  tlie  right  of  depriving 
the  American  citizen  of  his  real  rlfjld,  at  the  simple  instance  of  the 
diplomatic  agent  relying  upon  his  extra-territoriality  ?" 

This  question  was  answered  on  tiie  part  of  the  American  govern- 
ment, by  assuming  the  instance  contemplated  by  the  Prussian  gov- 
ernment to  be  that  of  an  implied  contract,  growing  out  of  the  relation 
of  landlord  and  tenant,  by  which  the  former  had  secured  to  him 
under  the  municipal  laws  of  the  country,  a  tacit  h)jpotIieJc  or  lien 
upon  the  furniture  of  the  latter.  It  was  taken  for  granted  that  there 
was  no  express  hypothecation,  still  less  any  giving  hi  pledf/e,  which 
implies  a  transfer  of  possession  by  way  of  security  for  a  debt.  There 
could  be  no  doubt  that,  in  this  last  case,  the  pawnee  has  a  complete 
right,  a  real  right,  as  it  was  called  by  the  Prussian  government,  or 
jus  la  re,  not  in  the  least  affected  by  diplomatic  immunities. 

With  these  distinctions  and  qualifications,  the  American  govern- 
ment had  no  doubt  that  the  view  taken  by  its  minister  (Wheaton)  of 
this  question  of  privilege  was  entirely  correct.  The  sense  of  that 
government  had  been  clearly  expressed  in  the  act  of  Congress,  1790, 
which  includes  the  very  case  of  distress  for  rent,  among  other  legal 
remedies  denied  to  the  creditors  of  a  foreign  minister. 

The  Prussian  government  adhered  to  its  view  of  the  case,  and  the 
question,  therefore  remained  unsettled,  as  between  the  two  govern- 
ments. 


CASE  OF  BAROX  DE  WRECH,  1772. 

(Marten^ s  Causes  Celebres.) 

Is  it  an  infringement  of  a  ministei-'s  diplomatic  privileges  to  withhold  ]ii<:  pass- 
ports,  until  his  debts  are  paid  ? 

In  1772,  the  Baron  de  Wrech,  Minister  Plenipotentiary  of  the 
Landgrave  of  Ilesse-Cassel  at  the  court  of  Paris,  was  recalled  from 
his  embassy.  He  was  about  to  quit  Paris  without  paying  the  debts 
which  he  had  contracted  there.  His  creditors,  especially  a  Marquis 
de  Bezons,  besought  the  Minister  of  Foreign  Affairs  not  to  grant 
the  Baron  his  passport.  It  was  accordingly  refused.  All  the  corps 
diplomatique  at  Paris  remonstrated  against  this  act  as  a  violation 
of  International  Law. 

The  French  Minister,  le  Due  d'Aiguillon,  replied  in  an  elaborate 
7 


98  TERRITORIAL   JURISDICTION.  [PART   I. 

memoir  drawn  up  1  )y  INI.  Pfeffel,  upon  the  Rights  of  Ambassadors ; 
defended,  upon  the  authority  of  Grotius  and  Bynkershoek,  the  right 
of  using  that  species  of  constraint  against  an  ambassador  which  did 
not  interfere  with  the  exercise  of  his  functions.  He  further  appealed 
to  the  practice  of  other  States,  as  warranting  the  step  which  had  been 
taken,  and  especially  to  that  of  Hesse-Cassel  itself,  which  had  impris- 
oned a  Dutch  ambassador,  in  order  to  compel  him  to  render  an  account 
of  a  charitable  institution  of  which  he  had  been  the  administrator.  It 
was  admitted  that  this  attack  on  the  person  of  an  ambassador  was 
indefensible,  but  it  was  added  that  Holland  had  not  denied  the 
jurisdiction  of  Hesse-Cassel  in  the  matter. 

The  Landgrave  was  compelled  to  make  an  arrangement  with  the 
creditors  of  the  Baron  de  Wrech,  before  that  minister  could  obtain 
his  passport. 


CASE   OF   DUBOIS,    1856. 

(.Sen.  Ex.  Doc.  No.  21,  ^th  Cong.,  ZCl  Sess.) 

A  foreign  minister  cannot  be  compelled  to  appear  before  a  court  as  a  witness. 

A  case  of  homicide  having  occurred  at  Washington,  in  1856,  in 
the  presence  of  the  Dutch  minister,  whose  testimonj^  was  deemed 
altogether  materialfor  the  trial,  "and  inasmuch  as  he  was  exempt 
from  the  ordinary  process  to  compel  the  attendance  of  witnesses," 
an  application  was  made  by  the  district  attorney,  through  the  Secre- 
tary of  State,  to  Mr.  Dubois  to  appear  and  testify.  The  minister 
having  refused,  by  the  unanimous  advice  of  his  colleagues,  in  a  note 
of  the  11th  of  May,  1856,  to  the  Secretary  of  State,  to  appear  as  a 
witness,  Mr.  Marcy,  Secretary  of  State,  instructed.  May  15,  1856, 
Mr.  Belmont,  minister  of  the  United  States  at  the  Hague,  to  bring 
the  matter  to  the  attention  of  the  Xetherlands  Government. 

Mr.  Marcy  says,  that  "  it  is  not  doubted  that  both  by  the  usage  of 
nations  and  the  laws  of  the  United  States,  Mr.  Dubois  has  the  legal 
right  to  decline  to  give  his  testimony;  but  he  is  at  perfect  liberty  to 
exercise  the  privilege  to  the  extent  requested,  and  by  doing  so  he 
does  not  subject  himself  to  the  jurisdiction  of  the  country.  The 
circumstances  of  this  case  are  such  as  to  appeal  strongly  to  the 
universal  sense  of  justice. 

"  In  the  event  of  M.  Van  Hall's  suggesting  that  M.  Dubois  might 
give  his  deposition  out  of  court  in  the  case,  you  will  not  omit  to 
state  that  by  our  constitution,  iu    all  criminal  prosecutions,  the 


CHAP.  II.]  Dillon's  case.  09 

accused  has  the  right  to  be  confronted  with  the  witnesses  against 
him,  iind  hence,  in  order  that  the  testimony  shonld  he  legal,  it  must 
be  given  before  the  court."  M.  Van  Hall,  .June  U,  ISoG,  in  a  note  to 
Mr.  Belmont,  declined  authorizing  the  minister  to  a])pear  in  court. 
He  said  that,  "availing  himself  of  a  prerogative  generally  conceded 
to  the  members  of  the  diplomatic  body,  and  recognized  also  by  the 
laws  of  the  Republic;,  as  adverted  to  by  Mr.  Marcy,  M.  Dubois  re- 
fused to  appear  before  a  court  of  justice ;  but  being  desirous  to  at 
once  reconcile  that  prerogative  with  the  requirements  of  justice,  he 
suggested  a  middle  course  of  action,  and  proposed  to  Mr.  Marcy  to 
give  his  declaration  under  oath,  should  he  be  authorized  to  that 
effect  by  the  Government  of  the  Netherlands.  After  taking  the 
King's  orders  on  the  subject,  T  did  not  hesitate  to  give  such  au- 
thority to  M.  Dubois,  approving  at  the  same  time,  and  formally,  the 
line  of  conduct  which  he  pursued  on  that  occasion.'"  ^f.  Dubois 
addressed  a  note  to  Mr.  Marcy,  on  tlie  21st  of  June,  stating  that  he 
was  authorized  to  make  his  declaration  under  oath  at  the  Depart- 
ment of  State,  adding,  "  it  is  understood  that,  on  such  an  occasion, 
no  mention  is  to  be  made  of  a  cross-examination,  to  which  I  could 
not  subject  myself."  The  declaration  was  not  taken,  as  the  district 
attorney  stated  that  it  would  not  be  admitted  as  evidence. 


DILLON'S    CASE,    1854. 

(1  Wharton's  Digest,  G65.) 

The  clause  in  the  Constitution  of  the  United  States  which  gives  a  person  accused 
of  a  criminal  oifense  before  the  Federal  courts  the  right  of  compulsory  process  to 
procure  the  presence  of  witnesses  in  his  favor,  and  to  be  confronted  by  the  wit- 
nesses against  him,  prevails  over  a  treaty  which  exempts  the  consuls  of  a  foreign 
State  from  appearing  before  the  courts  as  witnesses. 

In  1854  Mr.  Dillon,  then  consul  of  France  at  San  Francisco,  was 
brought  into  the  LTnited  States  District  Court,  then  sitting,  on  an 
attachment  for  refusing  to  obey  a  subpoena  duces  tecum  issued  from 
that  court  to  compel  his  attendance  at  a  criminal  trial  then  and 
there  pending.  Mr.  Dillon  protested  against  the  process  on  two 
grounds:  (1)  Immunity  from  such  process  by  international  law; 
(2)  immunity  under  the  French- American  treaty.  The  second  point 
was  merged  in  argument  in  the  first,  since  it  was  agreed  by  counsel 
that  the  treaty  privilege  could  not  stand  in  the  way  of  a  party's  con- 
stitutional right  to  meet  the  witness  against  him  face  to  face,  unless 
that  privilege  was  in  accordance  with  public  international  law. 

On  this  question  the  court  (Hoffman,  J.,)  spoke  as  follows: 


100  TEiaUTOltlAL   JURISDICTIOX.  [PART  I. 

"  Tf  the  accused,  by  virtue  of  the  constitutional  provision  in  this 
case,  can  compel  the  attendance  of  the  consul  of  France,  it  seems 
necessarily  to  follow  the  attendance  of  an  ambassador  could  in  like 
manner  be  enforced. 

"  The  immunity  afforded  to  and  personal  inviolability  of  ambassa- 
dors, now  universally  recognized  by  the  law  of  nations,  has  been 
deemed  one  of  the  most  striking  instances  of  the  advance  of  civiliza- 
tion and  the  progress  of  enlightened  and  liberal  ideas.  Though 
resident  in  a  foreign  country  to  which  they  are  deputed  (1  Kent. 
Com.,  45),  their  persons  have,  by  the  consent  of  all  nations,  been 
deemed  inviolable ;  nor  can  they,  says  the  same  high  authorit}',  be 
made  amenable  to  the  civil  or  criminal  jurisdiction  of  the  country. 
By  fiction  of  law,  tlie  ambassador  is  considered  as  if  he  were  out  of 
the  territory  of  the  foreign  power,  and,  tliough  he  resides  within 
the  foreign  state,  lie  is  considered  a  member  of  his  own  countrj-,  re- 
taining his  original  domicile,  and  the  Government  he  represents  has 
exclusive  cognizance  of  his  conduct  and  control  over  his  person. 
(1  Kent's  Com.,  4G.) 

"  Does,  then,  the  Constitution  of  the  United  States,  by  the  provi- 
sion in  favor  of  persons  accused  of  crime,  intend  to  subject  these  high 
functionaries  to  the  process  of  the  courts,  and  does  it  authorize  and 
require  the  courts  in  case  of  disobedience  to  violate  their  persons 
and  disregard  immunities  universally  conceded  to  theui  by  the  law 
of  nations,  by  imprisoning  them  ?  If,  as  is  the  received  doctrine, 
the  ambassador  cannot,  even  in  the  case  of  a  high  crime  committed 
V)y  himself,  be  proceeded  against,  it  is  obvious  that  for  a  lesser 
offense  of  a  contempt  or  disobedience  to  an  order  of  a  court,  lie  would 
(I  fortiori  not  l)e  amenable  to  the  law.  The  only  ground  upon  which 
the  right  of  a  court  to  compel  the  attendance  of  an  ambassador  b}' 
its  process,  and  to  punish  him  if  he  disoljey  it,  can  lie  placed,  is  that 
the  Constitution  is  in  this  case  in  conflict  with  and  paramount  to 
the  law  of  nations,  and  the  immunity  usually  conceded  to  ambassa- 
dors is,  by  the  provision  in  favor  of  the  accused  in  criminal  cases, 
taken  away. 

"  But  the  privilege  of  ambassadors  from  arrest,  under  any  circum- 
stances, has  Ijeen  declared  by  congress  by  special  legislation.  By 
the  twenty-fifth  section  of  the  act  of  congress  of  April  30,  1790,  it  is 
enacted  that, '  if  any  writ  or  process  sue  out  of  anj'  courts  of  the  United 
States,  or  of  a  particular  State,  or  by  any  judge  or  justice  therein 
respectively,  whereby  the  person  of  an  ambassador  may  be  arrested 
or  imprisoned,  or  his  goods  distrained,  seized,  or  attached,  such  writ 
and  process  shall  be  deemed  and  adjudged  to  be  utterly  null  and 
void  to  all  intents,  construction,  and  purposes  whatever.'  " 


CHAr.  II.]  Dillon's  case.  lul 

When  the  attachment  was  served  on  Mr.  Dillon,  he  hauled  down 
the  consular  flag;  and  the  case  was  taken  up  by  the  French  minister 
at  Washington,  as  involving  a  gross  disrespect  to  France.  A  long 
and  animated  controversy  between  IMr.  Marcy,  then  Secretary  of 
State,  and  the  French  Government  ensued.  The  fact  that  an  attach- 
ment had  issued  under  whi(;h  Mr.  Dillon  was  brought  into  court  was 
regarded  by  the  French  Government  as  not  merely  a  contravention 
of  the  treaty,  but  an  offense  by  international  law  ;  and  it  was  argued 
that  the  disi'espect  was  not  purged  by  the  subse(pient  discharge  of 
Mr.  Dillon  from  arrest.  It  was  urged,  also,  that  the  fact  that  the 
subpoena  contained  the  clause  duces  ^ec«/M  involved  a  violation  of  the 
consular  archives.  Mr.  Marcy,  in  a  letter  of  September  11,  ls54,  to 
j\[r.  Mason,  then  minister  at  Paris,  discusses  these  questions  at  great 
length.  He  maintains  that  the  provision  in  the  Federal  Constitution 
giving  defendants  opportunity  to  meet  witnesses  produced  against 
them  face  to  face,  overrides  conflicting  treaties,  unless  in  cases  where 
such  treaties  embody  exceptions  to  this  right  recognized  as  such 
when  the  Constitution  was  framed.  One  of  these  exceptions  relates 
to  the  case  of  diplomatic  representatives.  "  As  the  law  of  evidence 
stood  when  the  Constitution  went  into  effect,"  says  Mr.  ■Nfavc}',  "am- 
bassadors and  ministers  could  not  be  served  with  compulsory  pro- 
cess to  appear  as  witnesses,  and  the  clause  in  the  Constitution  re- 
ferred to  did  not  give  the  defendant  the  right  in  criminal  prosecutions 
to  compel  their  attendance  in  court."  This  privilege,  however,  Mr. 
Marcy  maintained,  did  not  extend  to  consuls,  and  consuls,  therefore, 
could  only  procure  the  privilege  when  given  to  them  by  treatj-  which, 
in  criminal  cases,  was  subject  to  the  limitations  of  the  Constitution 
of  the  United  States.  Mr.  Marcy,  however,  finding  that  the  French 
Goverrunent  continued  to  regard  the  attachment,  with  the  subpoena 
duces  tecum^  as  an  attack  on  its  honor,  offered,  in  a  letter  to  Mr.  Ma- 
son, dated  January  18,  1855,  to  compromise  the  matter  by  a  salute 
to  the  French  flag  upon  a  French  man-of-war,  stop[)ing  at  San  Fran- 
cisco. Count  de  Sartejes,  the  French  minister  at  Washington,  asked 
in  addition  that  when  the  consular  flag  at  San  Francisco  was  rehoisted, 
it  should  receive  a  salute.     This  was  declined  by  Mr.  Marcy. 

In  August,  1855,  after  a  long  and  protracted  controversy,  the 
French  Government  agreed  to  accept  as  a  sufficient  satisfaction  an 
expression  of  regret  by  the  Government  of  the  United  States,  coup- 
led with  the  provision  that  "  when  a  French  national  ship  or  squad- 
ron shall  appear  in  the  harbor  of  San  Francisco  the  United  States 
authorities  there,  military  or  naval,  will  salute  the  national  flag 
borne  by  such  ship  or  squadron  with  a  national  sahite,  at  an  hour  to 
be  specified  and  agreed  on  with  the  French  naval  commanding  officer 


102  TEP.RrXOBIAL   JURISDICTION^.  [PAKT    L 

present,  and  the  French  ship  or  squadron  whose  flag  is  thus  saluted 
will  return  the  salute  gun  for  gun." 

In  a  dLspat<;h  to  ^Mason,  American  minister  to  France,  ^Ir.  ^larcy 
said  : .  '•  The  Constitution  is  to  prevail  over  a  treaty  where  the  pro- 
visions of  the  one  come  in  conflict  with  the  other.  It  would  be  diffi- 
cult to  find  a  reputable  lawyer  in  this  country  who  would  not  yield 
a  ready  assent  to  this  proposition.  Mi\  Dillon's  comisel  admitted  it 
in  his  argument  for  the  consul's  privilege  before  the  court  in  Cali- 
fornia. 

"  The  sixth  amendment  to  the  United  States  Constitution  gives, 
in  general  and  comprehensive  L\nguage,  the  right  to  a  defendant  in 
criminal  prosecutions  to  have  compulsory  process  to  procure  the 
attendance  of  witnesses  in  his  favor.  Neither  Congress  nor  the 
ti*eaty-making  power  are  competent  to  put  any  restriction  on  this 
constitutional  provision.  There  was,  however,  at  the  time  of  its 
adoption,  some  limit  to  the  range  of  its  operation.  It  did  not  give  to 
such  a  defendant  the  right  to  have  compulsory  process  against  all 
persons  whatever  but  only  against  such  as  were  subject  to  subpoena 
at  that  time,  such  as  might  by  existing  law  be  witnesses. 

"  There  were  then  persons  and  classes  of  persons  who  were  not  thus 
subject  to  that  process,  who,  by  privileges  and  mental  disqualifica- 
tions, could  not  be  made  witnesses,  and  this  constitutional  provision 
did  not  confer  the  right  on  the  defendant  to  have  compulsory  process 
against  them.  As  the  law  of  e\'idence  stood  when  the  Constitution 
went  uito  effect,  ambassadors  and  ministers  could  not  be  served  with 
compulsory  process  to  appear  as  witnesses,  and  the  clause  in  the 
Constitution  referred  to  did  not  give  to  the  defendant  in  criminal 
prosecutions  the  right  to  compel  their  attendance  in  court.  But  what 
was  the  case  in  this  resx)ect  as  to  consuls  ?  They  had  not  the  diplo- 
matic privileges  of  ambassadors  and  ministers.  After  the  adoption 
of  the  Constitution  the  defendant  in  a  criminal  prosecution  had  the 
right  to  compulsoiy  process  to  bring  into  court  as  a  witness  in  his 
behalf  any  foreign  consul  whatsoever. 

"  If  he  then  had  it,  and  has  it  now,  when  and  how  has  this  constitu- 
tional right  Ijeen  taken  from  him?  Congress  could  not  take  it  away, 
neither  could  the  treaty-making  power,  for  it  is  not  within  the  com- 
petence of  either  to  modify,  or  restrict  the  operation  of  any  provision 
of  the  Constitution  of  the  United  States.'** 

1  Other  cases  bearing  upon  this  subject  are  : — 

Tlie  Mnrjdalina  Steam  Xarijation  Company  v.  Martin,  2S  L.  J.,  Q.  B.,  X.  S..  -310, 
(1859),  Lord  Campbell,  C.  J.,  said  :  "  Tlie  question  raised  by  tlus  record  is  whether 
the  public  minister  of  a  foreign  state,  accredited  to  and  received  by  Her  Majesty. 
having  no  real  property  in  England,  and  having  done  nothing  to  disentitle  him  to 


yjHAP.  U.]       THE   SCHOOiiEli    ''  EXCH.LNGE  "    V.  m'e.VUUOX.  103 


Section  11. —  Immunities  of  Public  Siiips, 


(a)  Ships  of  War. 
THE  SCHOONER  "  EXCHANGE  "  v.  M'FvM)DON. 

Supreme  Court  of  the  United  States,  1812. 

(T  Cranch,  IIG.) 

.  It  is  a  principle  of  public  law,  that  national  ships  oi  war,  entering  the  port  of  a 
friendlj-  power  open  to  their  reception,  are  to  be  considered  as  exempted  by  the 
consent  of  that  power  from  its  jurisdiction. 

Appeal  from  the  sentence  of  the  circuit  court  of  the  United  States 
for  the  district  of  Pennsylvania. 
The  schooner  Exchange^  owned  Ijy  John  M'Faddon  and  William 

the  privileges  generally  belonging  to  such  public  minister,  may  be  sued,  against 
his  will,  in  the  courts  of  this  country  for  a  debt,  neither  his  person  nor  his  goods 
being  touched  by  the  suit,  while  he  remains  such  public  minister."  Ileld,  that  he 
could  not  be  so  sued. 

Nitchencofi's  Ca>ie,  10  Solic.  Law  Journal,  o(J  :  "  The  French  Court  of  Cassation 
lias  quashed  the  appeal  of  Xitchencoff,  the  Ilussian  sentenced  to  imprisonment  for 
life  foi-  a  murderous  attack  upon  M.  de  Balsh,  in  the  house  of  the  Russian  Am- 
bassador in  Paris.  It  will  be  remembered  that  this  case  gave  rise  to  a  diplomatic 
correspondence,  the  Russian  Government  having  disputed  the  right  of  the  French 
courts  to  try  the  murderer,  and  claimed  a  right  to  have  him  given  up  for  trial  in 
Russia.  The  court  laid  down  the  law  that  "  the  fiction  of  the  law  of  nations,  according 
to  which  the  house  of  an  ambassador  is  reputed  to  be  a  continuation  of  the  territory 
of  his  sovereign,  only  protects  diplomatic  agents  and  their  servants,  and  does  not 
exclude  the  jurisdiction  of  French  courts,  in  case  of  a  crime  committed  in  such 
a  locality  by  a  person  not  belonging  to  the  embassy,  even  although  he  is  a  subject 
of  the  nation  from  which  the  ambassador  is  accredited." 

TJie  Guiteau  Trial  (1881),  1  Wliarton's  Digest,  0G9  :— On  the  trial  of  Guiteau, 
Seiior  Camacho,  minister  from  Venezuela,  who  was  present  at  President  Garfield's 
assassination,  was  called  as  a  witness  for  the  prosecution. 

Before  he  was  sworn  the  following  statement  was  made  by  the  district  attorney  : 

"  If  your  honor  please,  before  the  gentleman  is  sworn,  I  desire  to  state,  or  rather 
I  think  it  due  to  the  witness  to  state  that  he  is  the  minister  from  Venezuela  to  this 


104  TERRITOEIAL   JURISDICTION.  [PART  I. 

Greetham,  sailed  from  Baltimore,  October  27, 1809,  for  St.  Sebastians, 
in  Spain.  On  the  30tli  of  December,  1810,  she  was  seized  by  the 
order  of  Xapoleou  Bonaparte :  and  was  then  armed  and  commis- 
sioned as  a  public  vessel  of  the  French  government,  under  the  name 
of  Jialaou.  On  a  voyage  to  the  West  Indies,  she  put  into  the  port 
of  Philadelphia,  in  July,  1811,  and  on  the  24th  of  August  was  libelled 
by  the  original  owners.  As  no  claimant  appeared.  Mr.  Dallas,  the 
attorney  of  the  United  States  for  the  district  of  Pennsylvania  filed 
(at  the  suggestion  of  the  executive  department  of  the  United  States, 
it  is  believed)  a  stiggestion  that  inasmuch  as  there  was  peace  between 
France  and  the  United  States,  the  public  vessels  of  the  former  may 
enter  into  the  ports  and  harbors  of  the  latter  and  depart  at  will 
without  seizure  or  detention  in  any  wa5\ 

The  district  jtidge  dismissed  the  libel,  on  the  ground  that  a  public 
armed  vessel  of  a  foreign  power,  at  peace  with  the  United  States,  is 
not  subject  to  the  ordinary  judicial  tribunals  of  the  country,  so  far 
as  regards  the  question  of  title,  by  which  the  foreign  sovereign 
claims  to  hold  her. 

The  libellants  appealed  to  the  circuit  court,  where  the  sentence 
was  reversed — from  the  sentence  of  reversal,  the  district  attorney 
appealed  to  this  court. 

Marshall,  C.  J. : — "  This  case  involves  the  very  delicate  and  impor- 
tant inqtiiry,  whether  an  American  citizen  can  assert,  in  an  American 
court,  a  title  to  an  armed  national  vessel,  found  within  the  waters 
of  the  United  States. 

"The  qtiestion  has  been  considered  with  an  earnest  solicitude, 

Govermnent,  and  entitled  under  the  law  governing  diplomatic  relations  to  be 
relieved  from  service  by  subptsna  or  sworn  as  a  witness  in  anj'  case. 

"  Under  the  instructions  of  his  Government,  owing  to  the  friendship  of  that 
Government  for  the  United  States,  and  the  great  respect  for  the  memory  of  the 
man  who  was  assassinated,  they  have  instructed  him  to  waive  his  rights  and  appear 
as  a  witness  in  the  case,  the  same  as  anj-  witness  who  is  a  citizen  of  this  comitry." 

Respublica  v.  DeLonychanips,  1  Dallas,  110  (ITS!)  : — The  defendant  threatened 
to  assault  the  .Secretai-y  of  the  French  Legation,  the  threats  being  made  in  the 
house  of  the  French  minister.  The  defendant  was  fined  8o00  and  imi^risoned  two 
years. 

Un!(ed  Stafes  v.  Lhldle,  2  Wash.  Circ.  Ct.,  205  (1808)  .-—Indictment  for  assaidt 
and  battery  on  a  member  of  the  Spanish  Legation.  The  law  is  the  same  whether 
the  attacked  is  a  private  party  or  an  ambassador,  viz.,  if  the  ambassador  was  the 
prior  assaulting  party,  the  defendant  is  excused  for  his  subsequent  assaidt. 

United  States  v.  Orter/n,  4  "Wash.  Circ.  Ct.,  5.31  (1825)  : — Indictment  for  an 
assault  on  the  Spanish  Charge  d" Affaires.  Cites  Liddle's  case  and  affirms  it: 
"  A  foreign  minister,  by  committing  the  first  assault,  so  far  loses  his  privilege,  that 
he  cannot  complain  of  an  infraction  of  the  law  of  nations  ;  if  in  his  tiu-n,  he  should 
be  assaulted  by  the  party  aggrieved." 


CHAP.  II.]       THE   SCHOONER    "  EXCHANGE  "    y.  m'fADDoN.  lO;') 

that  the  decision  may  conform  to  those  principles  of  national  aiul 
municipal  law  b}^  which  it  ought  to  be  regulated. 

"  In  exploring  an  unbeaten  path,  with  few,  if  any  aids,  from  i>vv- 
cedents  or  written  law,  the  court  has  found  it  necessary  to  rely 
much  on  general  principles,  and  on  a  train  of  reasoning,  founded  on 
cases  in  some  degree  analogous  to  this. 

"The  jurisdiction  of  courts  is  a  branch  of  that  which  is  possessed 
by  the  nation  as  an  independent  sovereign  power. 

"The  jurisdiction  of  the  nation  within  its  own  territory  is  neces- 
sarily exclusive  and  absolute.  It  is  susceptible  of  no  limitation  not 
imposed  by  itself.  Any  restriction  u;"on  it,  deriving  validity  from 
an  external  source,  would  imply  a  diminution  of  its  own  sovereignty 
to  the  extent  of  the  restriction,  and  an  investment  of  that  sovereignty 
to  the  same  extent  in  that  power  which  could  impose  such  restric- 
tions. 

"  All  exceptions,  therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to  the  consent 
of  the  nation  itself.     They  can  flow  from  no  other  legitimate  source. 

"  This  consent  may  be  either  express  or  implied.  In  the  latter 
case,  it  is  less  determinate,  exposed  more  to  the  uncertainties  of 
construction ;  but,  if  understood,  not  less  obligatory. 

"  The  world  being  composed  of  distinct  sovereignties,  possessing 
equal  rights  and  equal  independence,  whose  mutual  benefit  is  pro- 
moted by  intercourse  with  each  other,  and  by  an  interchange  of 
those  good  offices  which  humanity  dictates  and  its  wants  require, 
all  sovereigns  have  consented  to  a  relaxation  in  practice,  in  cases  under 
certain  peculiar  circumstances,  of  that  absolute  and  complete  juris- 
diction within  their  respective  territories  which  sovereignty  confers. 

"This  consent  may,  in  some  instances,  be  tested  by  connnon 
usage,  and  by  common  opinion,  growing  out  of  that  usage. 

"  A  nation  would  justly  be  considered  as  violating  its  faith,  al- 
though that  faith  might  not  be  expressly  plighted,  which  should 
suddenly  and  without  previous  notice,  exercise  its  territorial  powers 
in  a  manner  not  consonant  to  the  usages  and  received  obligations  of 
the  civilized  world. 

"  This  full  and  absolute  territorial  jurisdiction  being  alike  the  at- 
tribute of  every  sovereign,  and  being  incapable  of  conferring  extra- 
territorial power,  would  not  seem  to  contemplate  foreign  sovereigns 
nor  their  sovereign  rights  as  its  objects.  One  sovereign  being  in  no 
respect  amenaljle  to  another,  and  being  bound  by  obligations  of  the 
highest  character  not  to  degrade  the  dignity  of  his  nation,  by  placing 
himself  or  its  sovereign  rights  within  the  jurisdiction  of  another, 


106  TEIIKITOEIAL   JURISDICTION.  [PART  I. 

can  be  supposed  to  enter  a  foreign  territory  only  under  an  express 
license,  or  in  the  confidence  that  the  immunities  belonging  to  his  in- 
dependent sovereign  station,  will  be  extended  to  him. 

"  This  perfect  equality  and  absolute  uidependence  of  sovereigns, 
and  this  connnon  hiterest  impelling  them  to  mutual  hitercourse,  and 
an  interchange  of  good  oflBces  with  each  other,  have  given  rise  to  a 
class  of  cases  in  which  every  sovereign  is  understood  to  "U'aive  the 
exercise  of  a  part  of  that  complete  exclusive  territorial  jurisdiction, 
which  has  been  stated  to  be  the  attribute  of  every  nation. 

"  1st.  One  of  these  is  admitted  to  be  the  exemption  of  the  person 
of  the  sovereign  from  arrest  or  detention  within  a  foreign  territory. 

"  If  he  enters  that  territory  with  the  knowledge  and  license  of  its 
sovereign,  that  license,  although  containing  no  stipulation  exempt- 
ing his  person  froin  arrest,  is  universally  understood  to  imply 
such  stipulation. 

"  Why  has  the  whole  civilized  world  concurred  in  this  construc- 
tion ?  Tlie  answer  cannot  be  mistaken.  A  foreign  sovereign  is  not 
luiderstood  as  intending  to  subject  himself  to  a  jurisdiction  incom- 
liatible  with  his  dignity  and  the  dignity  of  his  nation,  and  it  is  to 
avf)id  this  subjection  that  the  license  has  been  obtained.  The  char- 
acter to  whom  it  is  given,  and  the  object  for  which  it  is  granted, 
equally  require  that  it  should  be  construed  to  impart  full  security 
to  the  person  who  has  obtained  it.  This  security,  however,  need 
not  be  expressed  ;  it  is  implied  from  the  circumstances  of  the  case. 
Should  one  sovereign  enter  the  territory  of  another,  without  the 
consent  of  that  other,  expressed  or  implied,  it  would  present  a  ques- 
tion which  does  not  appear  to  be  perfectly  settled,  a  decision  of 
which  is  not  necessary  to  any  conclusion  to  which  the  court  may 
come  in  the  cause  under  consideration.  If  he  did  not  thereby 
expose  himself  to  the  territorial  jurisdiction  of  the  sovereign,  whose 
dominions  he  had  entered,  it  would  seem  to  be  because  all  sovereigns 
impliedly  engage  not  to  avail  themselves  of  a  power  over  their 
equal,  which  a  romantic  confidence  in  their  magnanimity  has  placed 
in  their  hands. 

"  2d.  A  second  case,  standing  on  the  same  principles  with  the 
first,  is  the  immunity  which  all  civilized  nations  allow  to  foreign 
ministers. 

"Whatever  may  be  the  principle  on  which  this  immunity  is 
established,  whether  we  consider  him  as  in  the  place  of  the  sovereign 
he  represents,  or  by  a  political  fiction  suppose  him  to  be  extra- 
territorial, and  therefore,  in  point  of  law,  not  within  the  jurisdiction 
of  the  sovereign  at  whose  court  he  resides ;  still  the  immunity 
itself  is  granted  by  the  governing  power  of  the  nation  to  which  the 


CHAP.  II.]       THE   SCHOONER    ''EXCHANGE"    V.  M'eADDON.  IijT 

minister  is  deputed,  his  fiction  of  extra-territoriiility  could  not  Ijg 
erected  and  supported  against  tlie  will  of  the  sovereign  of  the  terri- 
tory.    He  is  supposed  to  assent  to  it. 

"  This  consent  is  not  expressed.  It  is  true  that  in  some  countries, 
and  in  this  among  others,  a  special  law  is  enacted  for  the  case.  But 
the  law  obviously  proceeds  on  the  idea  of  prescribing  the  i)unishment 
of  an  act  previously  unlawful,  not  of  granting  to  a  foreign  minister 
a  privilege  which  he  would  not  otherwise  possess. 

"The  assent  of  the  sovereign  to  the  very  important  and  extensive 
exemptions  from  territorial  jurisdiction  which  are  admitted  to  attach 
to  foreign  ministers,  is  implied  from  the  considerations  that,  without 
such  exemption,  every  sovereign  would  hazard  his  own  dignity  by 
employing  a  public  minister  abroad.  Ilis  minister  would  owe  tem- 
porary and  local  allegiance  to  a  foreign  prince,  aiid  would  be  less 
competent  to  the  objects  of  his  mission.  A  sovereign  committing 
the  interests  of  his  nation  with  a  foreign  power,  to  the  care  of  a 
person  whom  he  has  selected  for  that  purpose,  cannot  intend  to 
subject  his  minister  in  any  degree  to  that  power  ;  and  therefore  a 
consent  to  receive  him,  implies  a  consent  that  he  shall  possess  those 
privileges  which  his  principal  intended  he  should  retain,  privileges 
Avhich  are  essential  to  the  dignity  of  his  sovereign,  and  to  the  duties 
he  is  bound  to  perform. 

"  In  what  cases  a  minister,  b}^  infracting  the  laws  of  the  country 
in  which  he  resides,  may  subject  himself  to  other  punishment  than 
will  be  hiflicted  by  his  own  sovereign,  is  an  inquiry  foreign  to  the 
present  purpose.  If  his  crimes  be  such  as  to  render  him  amenable 
to  the  local  jurisdiction,  it  must  be  because  they  forfeit  the  priv- 
ileges annexed  to  his  character ;  and  the  minister,  by  violating  the 
conditions  under  which  he  was  received  as  the  representative  of  a 
foreign  sovereign,  has  surrendered  the  immunities  granted  on  those 
conditions  ;  or,  according  to  the  true  meaning  of  the  original  assent, 
has  ceased  to  be  entitled  to  them. 

"3d.  ^V  third  case  in  which  a  sovereign  is  understood  to  cede  a 
portion  of  his  territorial  jurisdiction  is,  wliere  he  allows  the  troops 
of  a  foreign  prince  to  pass  through  liis  dominions. 

"  In  such  case,  without  any  express  declaration  waiving  jurisdic- 
tion over  the  army  to  which  this  right  of  passage  has  been  granted, 
the  sovereign  who  should  attempt  to  exercise  it  would  certaiidy  be 
considered  as  violating  his  faith.  By  exercising  it,  the  purpose  for 
Avhich  the  free  passage  was  granted  Avould  be  defeated,  and  a  pt)r- 
tion  of  the  military  force  of  a  foreign  independent  nation  would  be 
diverted  from  those  national  objects  and  duties  to  which  it  was 
applicable,  and  would  be  withdrawn  from  the  control  of  the  sover- 


108  TEUltlTORIAL    JL'KISDICTIOX.  [I'AUT   I. 

eign  whose  power  and  whose  safety  might  greatly  depend  on  letain- 
ing  the  exckisive  command  and  disposition  of  this  force.  The  grant 
of  a  free  passage,  therefore,  implies  a  waiver  of  all  jurisdiction  over 
the  troops  during  their  passage,  and  permits  the  foreign  general  to 
use  that  discipline,  and  to  inflict  those  punishments  which  the 
government  of  his  army  may  require. 

"But  if,  without  such  express  permit,  an  army  should  be  led 
through  the  territories  of  a  foreign  prince,  might  the  jurisdiction  of 
the  territory  be  rightfully  exercised  over  the  individuals  composing 
this  army  ? 

"Without  doubt  a  military  force  can  never  gain  immunities  of 
any  other  description  than  those  which  war  gives,  by  entering  a 
foreign  territory  against  the  will  of  its  sovereign.  But  if  his  consent, 
instead  of  being  expressed  by  a  particular  license,  be  expressed  by  a 
general  declaration  that  foreign  troops  may  pass  through  a  specified 
tract  of  country,  a  distinction  between  such  general  permit  and  a 
particular  license  is  not  perceived.  It  would  seem  reasonable  that 
every  immunity  which  would  be  conferred  by  a  special  license, 
would  be,  in  like  maimer  conferred  by  such  general  permit.  We 
have  seen  that  a  license  to  pass  through  a  tei'ritory  implies  immu- 
nities not  expressed,  and  it  is  material  to  inquire  why  the  license 
itself  may  not  be  presumed  ? 

"It  is  obvious  that  the  passage  of  an  army  through  a  foreign  terri- 
tory Avill  probably  l)e  at  all  times  inconvenient  and  injurious,  and 
would  often  be  imminently  dangerous  to  the  sovereign  through  whose 
dominion  it  passed.  Such  a  practice  M'ould  break  down  some  of  the 
most  decisive  distinctions  lietween  peace  and  war,  and  would  reduce 
a  nation  to  the  necessity  of  resisting  by  war  an  act  not  absolutely 
hostile  in  its  character,  or  of  exposing  itself  to  the  stratagems  and 
frauds  of  a  power  whose  integrity  might  be  doubted,  and  who  might 
enter  the  country  under  deceitful  pretexts.  It  is  for  reasons  like 
these  that  the  general  license  to  foreigners  to  enter  the  dominions 
of  a  friendly  power,  is  never  understood  to  extend  to  a  military 
force ;  and  an  army  marching  into  the  dominions  of  another  sover- 
eign, may  justly  be  considered  as  committing  an  act  of  hostility ; 
and  if  not  opposed  by  force,  acquires  no  privileges  by  its  irregular 
and  im[)roper  conduct.  It  may,  however,  well  be  (piestioned  whether 
any  other  than  the  sovereign  power  of  the  state  l)e  capable  of  decid- 
ing that  such  military  commander  is  without  a  license. 

"But  the  rule  which  is  applical)le  to  armies,  does  not  appear  to  be 
equally  api>licable  to  ships  of  war  entering  the  ports  of  a  friendly 
power.  The  injury  inseparable  from  the  march  of  an  army  through 
an  inhabited  country  and  the  dangers  often,  indeed  generally,  at- 


CHAP.  11.]    THE    SCHOONER    "EXCHANGE"    V.  M'FADDON.  100 

tending'  it,  do  not  ensue  from  iidniitting-  a  ship  of  war,  without  a 
s[»ecial  license,  into  a  friendly  port.  A  ditl'erent  rule,  therefore,  with 
respect  to  this  species  of  military  force  has  been  generally  adopted. 
If,  for  reasons  of  state,  the  ports  of  a  nation  generally,  or  any  par- 
ticular ports  be  closed  against  vessels  of  war  generally,  or  the  vessels 
of  any  particular  nation,  notice  is  usually  given  of  such  determina- 
tion. If  there  be  no  prohibition,  the  ports  of  a  friendly  nation  are 
considered  as  open  to  the  public  ships  of  all  powers  with  whom  it 
is  at  peace,  and  they  are  supposed  to  enter  such  ports  and  to  re- 
main in  them  while  allowed  to  remain,  under  the  protection  of  the 
government  of  the  place. 

"  In  almost  every  instance,  the  treaties  between  civilized  nations 
contain  a  stipulation  to  this  effect  in  favor  of  vessels  driven  in  by 
stress  of  w^eather  or  other  urgent  necessity.  In  such  cases  the 
sovereign  is  bound  by  compact  to  authorize  foreign  vessels  to  enter 
his  ports.  The  treaty  bids  him  to  allow  vessels  in  distress  to  find 
refuge  and  asylum  in  his  ports,  and  this  is  a  license  which  he  is  not 
at  lil)erty  to  retract.  If  would  be  difficult  to  assign  a  reason  for 
withholding  from  a  license  thus  granted,  any  immunity  from  local 
jurisdiction  which  would  be  implied  in  a  special  license. 

"  If  there  be  no  treaty  applicable  to  the  case,  and  the  sovereign, 
from  motives  deemed  adequate  by  himself,  permits  his  ports  to  re- 
main open  to  the  public  ships  of  foreign  friendly  powers,  the  con- 
clusion seems  irresistible,  that  they  enter  by  his  assent.  And  if 
they  enter  by  his  assent  necessarily  implied,  no  just  reason  is  per- 
ceived by  the  court  for  distinguishing  their  case  from  that  of  vessels 
^^'hich  enter  by  express  assent.  In  all  the  cases  of  exemption  which 
have  been  reviewed,  much  has  been  implied;  but  the  obligation  of 
Avhat  was  implied  has  been  found  equal  to  the  obligation  of  that 
which  was  expi-essed.  Are  there  reasons  for  denying  the  applica- 
tion of  this  principle  to  ships  of  war  ? 

"  In  this  part  of  the  subject  a  difficulty  is  to  be  encountered,  the 
seriousness  of  which  is  acknowledged,  but  which  the  court  will  not 
attempt  to  evade. 

"  These  treaties  which  provide  for  the  admission  and  safe  depart- 
ure of  public  vessels  entering  a  port  from  stress  of  weather,  or  other 
urgent  cause,  provide  in  like  manner  for  the  pi'ivate  vessels  of  the 
nation;  and  where  public  vessels  enter  a  port  under  the  general 
license  which  is  implied  merely  from  the  absence  of  a  prohibition, 
they  are,  it  may  be  urged,  in  the  same  condition  with  merchant 
vessels  entering  the  same  port  for  the  purposes  of  trade  who  cannot 
thereby  claim  any  exemption  from  the  jurisdiction  of  the  country. 
It  may  be  contended,  certainly  with  much  plausibility  if  not  cor- 


110  TERRITORIAL   JURISDICTION.  [PART  I. 

rectiiess,  that  the  same  rule,  and  same  principle  are  applicable  to 
public  and  private  ships ;  and  since  it  is  admitted  that  private  ships, 
entering  without  special  license  become  subject  to  the  local  juris- 
diction, it  is  demanded  on  what  authority  an  exception  is  made  in 
favor  of  ships  of  war. 

"It  is  by  no  means  conceded,  that  a  private  vessel  really  availing 
herself  of  an  asylum  provided  by  treaty,  and  not  attempting  to 
trade,  would  become  amenable  to  the  local  jurisdiction  unless  she 
committed  some  act  forfeiting  the  protection  she  claims  under  com- 
pact. On  the  contrary,  motives  may  be  assigned  for  stipulating 
a)id  according  immunities  to  vessels  in  cases  of  distress,  which  would 
not  be  demanded  for,  or  allowed  to  those  which  enter  voluntarily, 
and  for  ordinary  purposes.  On  this  part  of  the  subject,  however, 
the  court  does  not  mean  to  indicate  any  opinion.  The  case  itself 
may  possibly  occur,  and  ought  not  to  be  prejudiced. 

"  Without  deciding  how  far  such  stipulations  in  favor  of  distressed 
vessels,  as  are  usual  in  treaties,  may  exempt  private  ships  from  the 
jurisdiction  of  the  place,  it  may  safely  be  asserted  that  the  whole 
reasoning  upon  which  such  exemption  has  been  implied  in  other 
cases,  applies  with  full  force  to  the  exemption  of  ships  of  \\ar  in 
this. 

"  '  It  is  impossible  to  conceive,'  says  Yattel, '  that  a  prince  who  sends 
an  ambassador  or  any  other  minister  can  have  any  intention  of  sub- 
jecting him  to  the  authority  of  a  foreign  power,  and  this  considera- 
tion furnishes  an  additional  argument,  which  completely  establishes 
the  independency  of  a  public  minister.  If  it  cannot  be  reasonably 
presumed  that  his  sovereign  means  to  subject  him  to  the  authority 
of  the  prince  to  whom  he  is  sent,  the  latter,  in  receiving  the  minis- 
ter, consents  to  admit  him  on  the  foothig  of  independency ;  and  thus 
there  exists  between  the  two  princes  a  tacit  convention,  which  gives 
a  new  force  to  the  natural  obligation.' 

"  Equally  impossible  is  it  to  conceive,  whatever  may  be  the  con- 
struction as  to  private  ships,  that  a  prince  who  stipulates  a  passage 
for  his  troops,  or  an  asylum  for  his  ships  of  war  in  distress,  should 
mean  to  subject  his  army  or  his  navy  to  the  jurisdiction  of  a  foreign 
sovereign.  And  if  this  cannot  be  presumed,  the  sovereign  of  the 
port  must  be  considered  as  having  conceded  the  privilege  to  the  ex- 
tent in  which  it  must  have  been  understood  to  be  asked. 

"  To  the  court,  it  appears,  that  where,  without  treaty,  the  ports 
of  a  nation  are  open  to  the  private  and  public  ships  of  a  friendly 
power,  whose  subjects  have  also  liberty  Avithout  special  license,  to 
enter  the  country  for  business  or  amusement,  a  clear  distinction  is 
to  be  drawn  between  the  rights  accorded  to  private  individuals  or 


CHAP.  II.]     THE    SCHOONER    "EXCHANGE"    y.  m'faDDON.  Ill 

trading  vessels,  and  those  accorded  to  public  armed  ships  which 
constitute  a  part  of  the  military  force  of  the  nation. 

"  The  preceding  reasoning,  has  maintained  the  propositions  that 
all  exemptions  from  territorial  jurisdiction  must  be  derived  from  the 
consent  of  the  sovereign  of  the  territory  ;  that  this  consent  may  be 
implied  or  expressed;  and  that,  when  implied,  its  extent  must  be 
regulated  by  the  nature  of  the  case  and  the  views  under  which  the 
parties  requiring  and  conceding  it  must  be  supposed  to  act. 

"  When  private  individuals  of  one  nation  spread  themselves  through 
another  as  busniess  or  caprice  may  direct,  mingling  indiscrimhiately 
with  the  inhabitants  of  that  other,  or  when  merchant  vessels 
enter  for  the  purposes  of  trade,  it  would  be  obviously  inconvenient 
and  dangerous  to  society,  and  would  subject  the  laws  to  continual 
infraction,  and  the  government  to  degradation,  if  such  individuals  or 
merchants  did  not  owe  temporary  and  local  allegiance,  and  were  not 
amenable  to  the  jurisdiction  of  the  country.  Nor  can  the  foreign 
sovereign  have  any  motive  for  wishing  such  exemption.  His  sub- 
jects thus  passing  into  foreign  countries,  are  not  employed  by  him, 
nor  are  they  engaged  in  national  pursuits.  Consequently  there  are 
powerful  motives  for  not  exempting  persons  of  this  description  from 
the  jurisdiction  of  the  country  in  which  they  are  found,  and  no  one 
motive  for  requiring  it.  The  implied  license,  therefore,  under 
which  they  enter,  can  never  be  construed  to  grant  such  exen.iption. 
But  in  all  respects  different  is  the  situation  of  a  pubhc  armed  ship. 
She  constitutes  a  part  of  the  military  force  of  her  nation  ;  acts  under 
the  immediate  and  direct  command  of  the  sovereign  ;  is  employed  by 
him  in  national  objects.  He  has  many  and  powerful  motives  for 
preventmg  those  objects  from  being  defeated  by  the  interference  of 
a  foreign  state.  Such  interference  cannot  take  place  without  affect- 
ing his  power  and  his  dignity.  The  implied  license,  therefore,  under 
which  such  vessel  enters  a  friendly  port,  may  reasonably  be  construed, 
and,  it  seems  to  the  court,  ought  to  be  construed,  as  containing  an 
exemption  from  the  jurisdiction  of  the  sovereign,  within  whose  ter- 
ritory she  claims  the  rites  of  hospitality. 

"Upon  these  principles,  by  the  unanimous  consent  of  nations,  a 
foreigner  is  amenable  to  the  laws  of  the  place;  but  certainly  in 
practice,  nations  have  not  yet  asserted  their  jurisdiction  over  the 
public  armed  ships  of  a  foreign  sovereign,  entering  a  port  open  for 
their  reception. 

"  Bynkershoek,  a  jurist  of  great  reputation,  has  indeed  maintained 
that  the  property  of  a  foreign  sovereign  is  not  distinguishable  by  any 
legal  exemption  from  the  property  of  an  ordinary  individual  and 
has  quoted  several  cases  in  which  courts  have  exercised  jurisdiction 


112  TERRITORIAL   JURISDICTION.  [PART  I. 

over  causes  in  which  a  foreign  sovereign  was  made  a  party  defend- 
ant. 

"  Without  indicating  any  opinion  on  this  question,  it  may  safely 
be  affirmed,  that  there  is  a  manifest  distinction  between  the  private 
property  of  tlie  person  avIio  happens  to  be  a  prince,  and  tliat  mili- 
tary force  which  supports  the  sovereign  power,  and  maintains  the 
dignity  and  the  independence  of  a  nation.  A  prince,  by  acquiring 
private  property  in  a  foreign  country,  may  possibly  be  considered  as 
subjecting  that  property  to  the  territorial  jurisdiction  ;  lie  may  be 
considered  as  so  far  laying  down  the  prince,  and  assuming  the  char- 
acter of  a  private  individual ;  but  this  he  cannot  be  presumed  to  do 
with  respect  to  any  portion  of  that  armed  force,  which  upholds  his 
crown,  and  the  nation  he  is  intrusted  to  govern. 

"  The  only  applicable  case  cited  by  Bynkershoek,  is  that  of  the 
Spanish  ships  of  war,  seized  in  Flushing  for  a  debt  due  from  the 
King  of  Spain.  In  that  case  the  states  generally  interposed ;  and 
there  is  reason  to  believe,  from  the  manner  in  which  the  trans- 
action is  stated,  that,  either  by  the  interference  of  government,  or 
the  decision  of  the  court,  the  vessels  were  released.  This  case  of 
the  Spanish  vessels  is,  it  is  believed,  the  only  case  furnished  bj'-  the 
history  of  the  world,  of  an  attempt  made  by  an  individual  to  assert 
a  claim  against  a  foreign  prince,  by  seizing  the  armed  vessels  of  the 
nation.  That  this  proceeding  was  at  once  arrested  by  the  govern- 
ment, in  a  nation  which  appears  to  have  asserted  the  power  of  pro- 
ceeding in  the  same  manner  against  the  private  property  of  the 
prince,  would  seem  to  furnish  no  feeble  argument  in  support  of  the 
universality  of  the  opinion  in  favor  of  the  exemption  claimed  for 
ships  of  war.  The  distinction  made  in  our  own  laws  between  public 
and  private  ships  would  appear  to  proceed  from  the  same  opinion. 

"  It  seems,  then,  to  the  court,  to  be  a  principle  of  public  law,  that 
national  ships  of  war,  entering  the  port  of  a  friendly  power  open 
for  their  reception,  are  to  be  considered  as  exempted  by  the  con- 
sent of  that  power  from  its  jurisdiction. 

"  Without  doubt,  the  sovereign  of  the  place  is  capable  of  destroy- 
ing this  implication.  He  may  claim  and  exercise  jurisdiction, 
either  by  employing  force,  or  by  subjecting  such  vessels  to  the  ordi- 
nary tribunals.  But,  until  such  power  be  exerted  in  a  manner  not 
to  be  misunderstood,  the  sovereign  cannot  be  considered  as  having 
imparted  to  the  ordinary  tribunals  a  jurisdiction,  which  it  would  be 
a  breach  of  faith  to  exercise.  Those  general  statutory  provisions, 
therefore,  which  are  descriptive  of  the  ordinary  jurisdiction  of  the 
judicial  tribunals,  which  give  an  individual  whose  property  has  been 
wrested  from  him,  a  right  to  claim  that  property  in  the  courts  of 


CHAP.   H.]       THE    SCHOONER    "EXCHANGE"'    ?'.  m'fADDuN.  llo 

the  country  in  which  it  is  found,  ought  not,  in  tlie  opinion  of  this 
court,  to  be  so  construed  as  to  give  them  jurisdiction  in  a  case  in 
which  the  sovereign  poAver  lias  impliedly  consented  to  waive  its  juris- 
diction. 

" The  arguments  in  favor  of  this  opinion  which  have  been  drawn 
from  the  general  inability  of  the  judicial  power  to  enforce  its  decis- 
ions in  cases  of  this  description,  from  the  consideration  that  the 
sovereign  power  of  the  nation  is  alone  competent  to  avenge  wrongs 
committed  by  a  sovereign,  that  the  questions  to  wiiicli  such  wrongs 
give  birth  are  rather  questions  of  policy  than  of  law,  that  they  are 
for  diplomatic,  rather  than  legal  discussion,  are  of  great  weight,  and 
merit  serious  attention.  But  the  argument  has  already  been  draAvn 
to  a  length  which  forbids  a  particular  examination  of  these  points. 

"  The  principles  which  have  been  stated  will  now  be  ajiplied  to  the 
case  at  bar. 

"  In  the  present  state  of  the  evidence  and  proceedings,  the  Ex- 
change must  be  considered  as  a  vessel  which  was  the  property  of 
the  libellants,  whose  claim  is  repelled  by  the  fact,  that  she  is  now 
a  national  armed  vessel,  commissioned  by,  and  in  the  service  of  the 
Emperor  of  France.  The  evidence  of  this  fact  is  not  controverted. 
But  it  is  contended  that  it  constitutes  no  bar  to  an  inquiry  into  the 
validity  of  the  title,  by  which  the  emperor  holds  this  vessel.  Every 
person,  it  is  alleged,  who  is  entitled  to  property  brought  within  the 
jurisdiction  of  our  courts,  has  a  right  to  assert  his  title  in  those- 
courts,  unless  there  be  some  law  taking  his  case  out  of  the  general 
rule.  It  is  therefore  said  to  be  the  right,  and  if  it  be  the  right,  it  is 
the  duty  of  the  court,  to  inquire  wdiether  this  title  has  been  ex- 
tinguished by  an  act,  the  validity  of  which  is  recognized  by  national 
or  municipal  law. 

"  If  the  preceding  reasoning  be  correct,  the  Edxhange,  being  a 
public  armed  ship,  in  the  service  of  a  foreign  sovereign,  with  whom 
the  government  of  the  United  States  is  at  peace,  and  having  entered 
an  American  port  open  for  her  reception,  on  the  terms  on  which  ships 
of  war  are  generally  permitted  to  enter  the  ports  of  a  friendly  power, 
must  be  considered  as  having  come  into  the  American  territory, 
under  an  implied  promise,  that  while  necessarily  within  it,  and  de- 
meaning herself  in  a  friendly  manner,  she  should  be  exempt  from 
the  jurisdiction  of  the  country." 


114  TEKPaXOKlAL   JUlilSDICTION.  [PAllT  1, 


THE  "COXSTITUTIOX." 

High  Court   of   Admiralty,  1879. 

(48  Law  Journal,  P.  B.  &  A.,  10.) 
A  ship  of  war  of  a  foreign  state  cannot  be  proceeded  against  in  a  suit  for  salvage. 

The  facts  are  sufficiently  stated  in  tlie  opinion. 

Sir  Robert  Phillimore  : — "  In  tliis  case  an  application  was  made  to 
the  court  to  allow  a  warrant  to  issue  of  a  peculiar  character — a 
warrant  which  was  to  be  served  upon  a  ship  of  war  belonging  to  an 
independent  state  at  amity  with  Her  Majesty.  The  court  directed 
the  case  to  stand  over,  and  suggested  that  it  would  be  proper  that 
notice  should  be  given  to  his  Excellency,  the  American  Minister  in 
London,  and  to  Lord  Salisbury,  as  Secretary  for  Foreign  Affairs. 
The  court  has  reason  to  congratulate  itself  that  it  took  that  step, 
for  the  result  has  been  that  it  has  had  the  advantage  of  hearing  the 
opinion  of  counsel  on  behalf  of  the  United  States  and  of  the  learned 
gentleman  representing  the  Crown.  It  appears  from  telegrams  which 
have  passed  in  the  case  that  a  claim  has  been  made  by  the  owner  of 
the  tug  for  1,500Z.,  but  that  the  American  Consul  at  Portsmouth  has 
forwarded  simply  a  cheque  for  2uOA,  in  recognition  of  the  services 
which  the  tug  has  rendered.  The  owner  of  the  tug  was  dissatisfied 
with  that  amount ;  and  consequently  made  an  application  to  this 
court  for  an  order  to  issue  a  warrant  to  arrest  the  Constitution  and 
her  cargo. 

"  The  question,  therefore,  which  is  raised  under  these  proceedings 
is  whether  I  have  any  jurisdiction  to  permit  the  arrest  of  a  foreign 
ship  of  war  belonging  to  an  independent  state  in  amity  with  our 
sovereign,  and  I  hardly  think  that  it  can  be  denied  that  if  I  were 
to  exercise  the  jurisdiction  which  is  craved  in  the  present  case,  I 
should  be  doing  that  for  which  there  exists  no  direct  precedent. 
On  the  contrary,  I  have  no  doubt  as  to  this  general  proposition — that 
ships  of  war  belonging  to  another  nation  with  whom  we  are  at  peace 
are  exempt  from  the  civil  jurisdiction  of  the  courts  of  this  countrj^  ; 
and  I  have  listened  in  vain  for  any  peculiar  circumstances  which 
would  take  this  case  out  of  that  general  proposition.  It  has  happened 
to  me  more  than  once  to  have  been  requested  by  foreign  states  to 
sit  as  arbitrator,  and  to  make  awards  in  differences  which  had  arisen 
between   them  and   British  subjects.      Had  such    an    application 


CHAP.  II.]  THE   "' CONSTITUTION."  115 

been  made  in  the  present  instance  I  would  have  gladly  undertaken 
the  duty  sought  to  be  imposed  upon  me;  but  that  is  not  the  state  of 
matters  I  have  now  to  consider.  All  that  I  have  now  to  determine 
is  the  simple  question  of  jurisdiction.  Various  cases  have  been 
cited  before  me  in  argument,  all  of  which,  with  one  exception,  were 
discussed  in  the  case  of  the  Cliarkieh^  but  that  was  a  wholly  different 
case  because  the  Khedive  of  Egypt  was  not  an  independent  sovereign, 
and  the  CJuirJdeh  herself  formed  one  of  a  fleet  of  merchantmen.  I 
may  in  the  lengthy  judgment  which  I  delivered  in  that  cause,  have 
let  drop  some  expression  which  may  have  given  rise  to  an  impression 
that  a  foreign  ship  of  war  is  liable  to  arrest,  but,  in  that  case  this 
question,  as  it  is  here  raised,  had  not  to  be  decided.  Now  that  it 
comes  before  me  in  this  plain  and  simple  form,  I  feel  no  doubt  that 
it  would  be  improper  for  me  to  accede  to  the  request  of  the  owner 
of  the  steam-tug,  nor  do  I  think,  as  I  have  said  above,  that  the 
Constitution  is  liable  to  the  process  of  this  court.  In  regard  to  the 
question  of  the  liability  of  the  cargo,  I  must  say  I  see  no  distinction 
between  the  issue  of  a  warrant  in  the  case  of  the  ship  and  in  the 
case  of  this  cargo;  it  is  on  board  a  foreign  vessel  of  war,  and  is 
under  the  charge  of  a  foreign  government  for  pul)lic  purposes. 

So  that,  having  no  authority  to  issue  either  of  the  warrants  prayed 
for,  and  as  no  precedent  exists  for  such  a  course,  I  must  dismiss  this 
motion  with  costs. ^ " 

^Mr.  Cobbett  (Cases  on  International  Law,  .35.)  says:  "Before  the  decisicn  in  tlie 
case  of  the  Constitution,  some  doubt  seems  to  have  existed  as  to  whether  salvage 
proceedings  might  not  be  instituted  in  the  English  Court  of  Admiralty  against  a 
public  vessel.  In  the  case  of  the  Charkicli,  Sir  R.  Philliinore  liad  said,  '  It  is  by 
no  means  clear  that  a  ship  of  war  to  which  salvage  services  have  been  rendered,  may 
not,  jure  gentiinn,  be  liable  to  be  proceeded  against  in  the  Court  of  Admiralty  for 
the  remuneration  due  for  such  services.'' 

"  In  a  much  earlier  case,  of  the  Prins  Frcdcrik  (2  Dods.,  4"1),  a  Dutch  man-of- 
war,  whilst  on  a  voyage  from  Batavia  to  the  Texel,  was  partially  disabled  by  stress 
of  weather  off  the  Scilly  Isles,  and  was  brought  into  Moimt's  Bay  with  the  assist- 
ance of  the  master  and  crew  of  a  British  brig,  belonging  to  the  port  of  Penzance. 
The  Prlns  Frederik  was  at  the  time  employed  in  bringing  home  a  cargo  of  spice 
belonging  to  the  Dutch  Government,  and  for  this  purpose  some  of  her  guns  had 
been  removed.  The  salvors  instituted  salvage  proceedings  against  the  vessel,  on 
the  ground  that  she  had  for  the  time  being,  at  least,  lost  the  character  and  privileges 
of  a  public  vessel,  and  also  on  the  further  ground  that  such  proceedings  being  in 
rem,  and  not  against  the  King  of  the  Netherlands  personally,  were  imder  any  cir- 
cumstances admissible.  According  to  Lord  Campbell,  who  quoted  this  case,  in  1851 
(17  Q.  B.,  212),  Lord  Stowell  took  a  strong  view  against  the  asserted  jurisdiction. 
To  avoid  difficulty,  Lord  Stowell  caused  a  representation  to  be  made  to  the  Dutch 
government,  who  consented  to  his  disposing  of  the  matter  as  arbitrator.  Acting 
under  this  authority,  Lord  Stowell  awarded  the  sum  of  £800  and  costs  to  the 
salvors." 

Mr.  Dana,  in  his  note,  No.  G3,  says  ;  "  It  may  be  considered  as  established  law, 


116  TEKlilTOKlAL   JURISDICTION.  [PAIJT  I. 


(h)  Other  Public  S/tips. 
THE  "PARLEMEXT  BELGE." 

Court  of  Appeals,  1878. 
(i.  7?.,  5  Probate  Dk.,  197.) 

A  public  vessel  of  a  foreign  state — not  a  ship  of  war — carrying  the  mails,  and 
also  carrying  merchandise,  is  nevertheless  exempt  from  the  jurisdiction  of  the 
a  Imiralty  courts,  in  England. 

This  was  an  appeal  on  behalf  of  the  Crown  from  a  decision  of  Sir 
K.  J.  Phillimore. 

The  judgment  of  the  court  (James,  Baggallay,  and  Brett,  L,  JJ.) 
was  delivered  by  Brett,  L.  J.  "  In  this  case  proceedings  in.  rem  on 
belialf  of  the  owners  of  the  Daring  were  instituted  in  the  Admiralty 
Division,  in  accordance  with  the  forms  prescribed  by  the  Judicature 
Act,  against  the  Parlernent  Beljje,  to  recover  redress  in  respect  of  a 
collision.  A  writ  was  served  in  the  usual  and  prescril)ed  manner  on 
board  the  Parlernent  Beige.  No  appearance  was  entered,  but  the 
Attorney-General,  in  answer  to  a  motion  to  direct  that  judgment 
with  costs  should  be  entered  for  the  plaintiffs,  and  that  a  warrant 
should  be  issued  for  the  Parlernent  Behje^  filed  an  information  and 
protest,  asserting  that  the  court  had  no  jurisdiction  to  entertain  the 
suit.  Upon  the  hearing  of  the  motion  and  protest  the  learned  judge 
of  the  Admiralty  Division  overruled  the  protest  and  allowed  the 
M-arrant  of  arrest  to  issue.  The  Attorney-General  appealed.  The 
protest  alleged  that  the  Parlernent  Beige  was  a  mail  packet  running 
between  Ostend  and  Dover,  and  one  of  the  packets  mentioned  in 
article  6  of  the  convention  of  the  17th  of  February,  1876,  made  be- 
tween tlie  sovereigns  of  Great  Britain  and  Belgium ;  that  she  was 
and  is  the  property  of  his  Majesty  the  King  of  the  Belgians,  and  in 
his  possession,  control  and  employ  as  reigning  sovereign  of  the  state, 
and  was  and  is  a  puldic  vessel  of  the  sovereign  and  state,  carrying 

now,  that  the  public  vessels  of  a  foreign  state,  coming  within  the  jurisdiction  of  a 
friendly  state,  are  exempt  from  all  forms  of  process  in  private  suits.  Xor  will 
such  ships  be  seized,  or  in  anj'  way  interfered  with,  by  judicial  proceedings  in  thf 
name  and  by  the  authority  of  the  state,  to  punish  violations  of  public  laws.  In 
such  cases,  the  offended  state  will  appeal  directly  to  the  other  sovereign.  Any 
proceedings  against  a  foreign  public  ship  would  be  regarded  as  an  unfriendly  if 
not  hostile  act,  in  the  present  state  of  the  law  of  nations." 


o'HAP.  II.]  THE    ''PAKLEMENT   BELGE."  117 

his  Majesty's  royal  pennon,  and  was  navigated  and  employed  by 
and  in  the  possession  of  sucli  government,  and  was  officered  hy 
officers  of  the  Koyal  Belgian  navy,  holding  commissions,  etc.  In 
answer  it  was  averred  on  affidavits,  which  were  not  eoniradicted, 
that  the  packet  boat,  besides  carrying  letters,  carried  merciiandise 
and  passengers  and  their  luggage  for  hire.  *  *  * 

"The  proposition  raised  by  the  first  question  seems  to  be  as 
follows :  Has  the  Admiralty  Division  jurisdiction  in  respect  of  a 
collision  to  proceed  in  rem  against,  and  in  case  of  non-appearance  or 
omission  to  find  bail,  to  seize  a\id  sell,  a  ship  present  in  this 
country,  which  ship  is  at  the  time  of  the  proceedings  the  property 
of  a  foreign  sovereign,  is  in  his  possession,  c(mtrol,  and  employ  as 
sovereign  by  means  of  his  commissioned  officers,  and  is  a  public 
vessel  of  his  state,  in  the  sense  of  its  being  used  for  purposes  treated 
by  such  sovereign  and  his  advisers  as  public  national  services,  it 
l)eing  admitted  that  such  ship,  though  connnissioned,  is  not  an  armed 
ship  of  war  or  employed  as  a  part  of  the  military  force  of  his 
country  ?  *  *  * 

"It  is  admitted  that  neither  the  sovereign  of  Great  Britain  nor  any 
friendly  sovereign  can  be  adversely  personally  impleaded  in  any 
court  of  this  country.  It  is  admitted  that  no  armed  ship  of  war  of 
the  sovereign  of  Great  Britain,  or  of  a  foreign  sovereign  can  be  seized 
by  any  process  whatever,  exercised  for  any  purpose  by  any  court  of 
this  country.  But  it  is  said  that  this  vessel,  though  it  is  the  property 
of  a  friendly  sovereign  in  his  public  capacity  and  is  used  for  pur- 
poses treated  by  him  as  public  national  services,  can  be  seized  and 
sold  under  the  process  of  the  Admiralty  Court  of  this  countrj', 
because  it  will,  if  so  seized  and  sold,  be  so  treated,  not  in  a  suit 
brought  against  the  sovereign  personally,  but  in  a  suit  in  rem  against 
the  vessel  itself.  This  contention  raises  two  questions  ;  first,  sup- 
posing that  an.  action  in  rem  is  an  action  against  the  propert}^  owiv, 
meaning  thereby  that  it  is  not  a  legal  proceeding  at  all  against  the 
owner  of  the  property,  yet  can  the  property  m  question  be  subject 
to  the  jurisdiction  of  the  court  ? 

"  Secondly,  is  it  true  to  say  that  an  action  in  rem  is  only  and  solely 
a  legal  procedure  against  the  property,  or  is  it  not  rather  a  procedure 
indirectly,  if  not  directly,  impleading  the  owner  of  the  property  to 
answer  to  the  judgment  of  the  court  to  the  extent  of  his  interest  in 
the  property?  *  *  * 

"  Having  carefully  considered  the  case  of  the  CharJdeh,  we  are 
of  opinion  that  the  proposition  deduced  from  the  earlier  cases  in  an 
earlier  part  of  this  judgment  is  the  correct  exposition  of  the  law  of 
nations,  viz.,  that  as  a  consequence  of  the  absolute  independence  of 


118  TEIUaTORIAL   JURISDICTIOX.  [I'AUT  I. 

every  sovereign  authority  and  of  tlie  international  comity  which 
induces  every  sovereign  state  to  respect  the  independence  of  every 
other  sovereign  state,  each  and  every  one  declines  to  exercise  by 
means  of  any  of  its  courts,  any  of  its  territorial  jurisdiction  over  the 
person  of  any  sovereign  or  ambassador  of  any  other  state,  or  over 
the  public  property  of  any  state  which  is  destined  to  its  public 
use,  or  over  the  property  of  any  ambassador,  though  such  sovereign, 
ambassador  or  property  be  within  its  territory,  and  therefore,  but 
for  the  common  agreement,  subject  to  its  jurisdiction. 

"  This  proposition  would  determine  the  first  question  in  the  present 
case  m  favor  of  the  protest,  even  if  an  action  in  rem  were  held  to  be 
a  proceeding  solely  against  property,  and  not  a  procedure  directly 
or  indirectly  impleading  the  owner  of  the  property  to  answer  to  the 
judgment  of  the  court.  But  we  cannot  allow  it  to  be  supposed  that 
in  our  opinion  the  owner  of  the  property  is  not  indirectly  impleaded. 
The  course  of  proceeding,  undoubtedly,  is  first  to  seize  the  property. 
It  is  undoubtedly,  not  necessary,  in  order  to  enal^le  the  court  to  pro- 
ceed further,  that  the  owner  should  be  personally  served  with  any 
process.  In  the  majority  of  cases,  brought  under  the  cognizance 
of  an  Admiralty  Court,  no  such  personal  service  could  be  effected. 
^Vnother  course  was  therefore  taken  from  the  earliest  times.  The 
seizure  of  the  proj)erty  was  made  by  means  of  a  formality  which  was 
as  public  as  could  be  devised.  That  formality  of  necessity  gave 
notice  of  the  suit  to  the  agents  of  the  owner  of  the  property,  and  so, 
in  substance,  to  him.  Besides  which,  by  the  regular  course  of  the 
admiralty,  the  owner  Avas  cited  or  had  notice  to  appear  to  show 
cause  why  his  property  should  not  be  liable  to  answer  to  the  com- 
plainant. The  owner  has  a  right  to  appear  and  show  cause,  a  right 
which  cannot  be  denied.  It  is  not  necessary,  it  is  true,  that  the 
notice  or  citation  should  be  personally  served.  But  unless  it  were 
considered  that,  either  by  means  of  the  publicity  of  the  manner  of 
arresting  the  property,  or  by  means  of  the  publicity  of  the  notice  or 
citation,  the  owner  had  an  opportunity  of  protecting  his  property 
from  a  final  decree  by  the  court,  the  judgment  in  rem  of  a  court 
would  be  manifestly  contrary  to  natural  justice.  In  a  claim  made 
in  respect  of  a  collision  the  property  is  not  treated  as  the  delinquent 
perse.  Though  the  ship  has  been  in  collision,  and  has  caused  injury 
by  reason  of  the  negligence  or  \\\x\\i  of  skill  of  those  in  charge  of  her, 
yet  she  cannot  be  made  the  means  of  compensation  if  those  in  charge 
of  her  were  not  the  servants  of  her  then  owner,  as  if  she  was  in 
charge  of  a  compulsory  pilot.  This  is  conclusive  to  shoAv  that  the 
liability  to  compensate  must  be  fixed  not  merely  on  the  property, 
but  also  on  the  owner  through  the  property. 


CHAP.  11.]  THE    "  TARLEMENT   BELGE."  119 

"  If  SO,  the  owner  is  at  least  indirectly  impleaded  to  answer  to,  that 
is  to  say,  to  be  affected  by,  the  judgment  of  the  court.  It  is  no 
answer  to  say  that  if  the  property  be  sold  after  the  maritime  lien 
has  accrued,  the  property  may  be  seized  and  sold  as  against  the 
new  owner. 

"  This  is  a  severe  law,  probably  arising  from  the  difficulty  of  other- 
wise enforcing  any  remedy  in  favor  of  an  injured  suitor.  But  the 
property  cannot  be  sold  as  agahist  the  new  owner,  if  it  could  not 
have  been  sold  as  against  the  owner  at  the  time  when  the  alleged 
lien  accrued.  This  doctrine  of  the  Courts  of  Admiralty  goes  only 
to  the  extent,  that  the  innocent  purchaser  takes  the  property  sub- 
ject to  the  inchoate  maritime  lien  which  attached  to  it  as  against 
him  who  was  the  owner  at  the  time  the  lien  attached.  The  new 
owner  has  the  same  public  notice  of  the  suit  and  the  same  oppor- 
tunity and  right  of  appearance  as  the  former  owner  would  have  had. 
lie  is  impleaded  in  the  same  way  as  the  former  owner  would  have 
been.  Either  is  affected  in  his  interests  by  the  judgment  of  a  court 
which  is  bound  to  give  him  the  means  of  knowing  that  it  is  about 
to  proceed  to  affect  those  interests,  and  that  it  is  bound  to  hear  him 
if  he  objects.     That  is,  in  our  opinion,  an  impleading. 

"  The  case  of  Tlie  Bold  Buccleugh  does  not  decide  to  the  contrary 
of  this.  It  decides  that  an  action  in  rem  is  a  different  action  from 
one  in  personam  and  has  a  different  result.  But  it  does  not  decide 
that  a  court  which  seizes  and  sells  a  man's  property  does  not  assume 
to  make  that  man  subject  to  its  jurisdiction.  To  implead  an  inde- 
pendent sovereign  in  such  a  way  is  to  call  upon  him  to  sacrifice 
either  his  property  or  his  independence.  To  place  him  in  that 
position  is  a  breach  of  the  principle  upon  which  his  immunity  from 
jurisdiction  rests.  We  think  that  he  cannot  be  so  indirectly  impleaded 
any  more  than  he  could  be  directly  impleaded.  The  case  is,  upon 
this  consideration  of  it,  brought  within  the  general  rule  that  a 
sovereign  authority  cannot  be  personally  impleaded  in  any  coui-t. 

"  But  it  is  said  that  the  immunity  is  lost  by  reason  of  the  ship 
having  been  used  for  trading  purposes.  As  to  this,  it  nmst  be 
maintained  either  that  the  ship  has  been  so  used  as  to  have  been 
employed  substantially  as  a  mere  trading  ship  and  not  substantial!}'- 
for  national  purposes,  or  that  a  use  of  her  in  part  for  trading  pur- 
poses takes  away  the  immunity,  although  she  is  in  j)ossession  of  the 
sovereign  authority  by  the  hands  of  commissioned  officers,  and  is 
substantially  in  use  for  national  purposes.  Botli  these  propositions 
raise  the  question  of  how  the  ship  must  be  considered  to  have  been 
employed. 

"  As  to  the  first,  the  ship  has  been  by  the  sovereign  of  Belgium, 


120  TERllITOIUAL   JURISDICTION.  [PAET  I, 

by  the  usual  means,  declared  to  be  in  his  possession  as  sovereign, 
and  to  be  a  public  vessel  of  the  state.  It  seems  very  difficult  to 
say  that  any  court  can  inquire  by  contentious  testimony  whether 
that  declaration  is  or  is  not  correct.  To  sul)mit  to  such  an  inquiry 
before  tlie  court  is  to  submit  to  its  jurisdiction.  It  lias  been  held 
that  if  the  ship  be  declared  by  the  sovereign  authority  by  the  usual 
means  to  be  a  ship  of  war,  tliat  declaration  cannot  be  incpiired  into. 
That  was  expressly  decided  under  very  trying  circumstances  in  the 
case  of  the  E.i'dianye.  Whether  the  ship  is  a  public  ship  used  for 
national  purposes  seems  to  come  within  the  same  rule.  But  if 
such  an  inquiry  could  properly  be  instituted  it  seems  clear  that  in 
the  present  case  the  ship  has  l)een  mainly  used  for  the  purpose 
of  carrying  the  mails,  and  only  subserviently  to  that  main  object 
for  the  purposes  of  trade.  The  carrying  of  passengers  and  merchan- 
dise has  been  subordinated  to  the  duty  of  carrying  the  mails.  The 
ship  is  not,  in  fact,  brought  within  the  first  proposition.  As  to  the 
second,  it  has  been  frequently  stated  that  an  independent  sovereign 
cannot  be  personally  sued,  although  he  has  carried  on  a  private  trad- 
mg  adventure.  It  has  been  held  that  an  ambassador  cannot  be 
personally  sued,  although  he  has  traded ;  and  in  both  cases  because 
such  a  suit  would  be  inconsistent  with  the  independence  and  equality 
of  the  state  which  he  represents.  If  the  remedy  sought  by  an  action 
in  rem  against  public  property  is,  as  we  think  it  is,  an  indirect  mode 
of  exercising  the  authority  of  the  court  against  the  owner  of  the 
property,  then  the  attempt  to  exercise  such  an  authority  is  an  at- 
tempt inconsistent  with  the  independence  and  equality  of  the  state 
which  is  represented  b^  such  owner.  The  property  cannot,  upon 
the  hypothesis,be  denied  to  be  public  property ;  the  case  is  within 
the  terms  of  the  rule ;  it  is  Avithin  the  spirit  of  the  rule  ;  therefore, 
we  are  of  opinion  that  the  mere  fact  of  the  ship  being  used  subor- 
dinately  and  partially  for  trading  purposes  does  not  take  away  the 
general  imnumity.  For  all  these  reasons,  we  are  unable  to  agree 
with  the  learned  judge,  and  have  come  to  the  conclusion  that  the 
judgment  must  be  reversed."  ^ 

1  In  the  case  of  Bri(/fjs  v.  Llght-Bnats  in  the  Supreme  Court  of  Massachusetts, 
1865  (II  Allen,  157),  the  plaintiff  liad  huilt  some  Hoatiiig  lights,  for  the  United 
States  government,  and  had  delivered  tliem  and  received  the  contract  price  ;  and 
the  title  to  tliem  had  vested  in  the  United  States,  subject  to  the  builders  lien. 
The  plaintiff  now  sought  to  enforce  his  lien. 

Gkay,  .J., says,  in  the  course  of  his  judgment,  "wherever  the  question  has  been 
raised,  courts  of  admiralty  have  generally  declined  to  take  jurisdiction  of  a  libel 
in  re;n  against  a  public  ship,  without  the  consent  of  the  government.  In  every 
aspect  in  which  we  can  look  at  these  suits,  in  the  light  of  principle  or  of  authority, 
we  cannot  escape  the  conclusion  that  the  state  courts  have  no  jurisdiction  or  right 
to  entertain  them." 


^^HAP.  U.]         THE    "NEWTON,"    AND   THE    "SALLY."  121 


Section  12. — Merchant  Vessels. 


THE  "NEWTON,"  AND  THE  "  SALLY." 

CoNSEiL  D'Etat,   180G. 

{Ortolan  :   Diplomatic  de  la  Met\  I.,  450.) 

This  is  one  of  the  earliest  cases  tending  to  establish  what  is  sometimes  called  the 
''  French  Rule,"  as  regards  the  jurisdiction  over  foreign  merchant  vessels,  by  the 
local  courts  of  the  country  whose  ports  they  visit.  According  to  this  practice  the 
French  courts  do  not  take  jurisdiction  in  the  case  of  acts  which  affect  only  the 
foreign  vessel  and  its  crew;  unless  the  acts  are  such  as  disturb  the  peace  of  the 
port. 

In  1806,  while  the  Netvton,  an  American  merchant  ship,  was  in 
the  port  of  Antwerp,  a  quarrel  took  place  between  two  sailors  in  a 
boat  belonging  to  the  ship.  About  the  same  time,  when  the  >S<<ni/, 
also  an  American  merchant  ship,  was  in  the  port  of  Marseilles,  the 
mate  dangerously  wounded  one  of  the  crew  on  the  ship.  The  Ameri- 
can consul  claimed  exclusive  jurisdiction  in  each  case.  This  claim 
was  upheld  by  the  Conseil  d'Etat,  in  the  following  judgment  : 

"  Le  Conseil  d'Etat  qui,  d'apres  le  renvoi  a  lui  fait  par  Sa  Majeste, 
a  entendu  le  rapport  de  la  section  de  legislation  sur  celui  du  grand 
juge,  ministre  de  la  justice,  tendant  a  regler  les  limites  de  la  juridic- 
tion  que  les  consuls  des  Etats-L'nis  d'  Amerique,  aux  i)orts  de  Mar- 
seille et  d'Anvers,  reclament  par  rapport  aux  delits  commis  a  bord 
des  vaisseux  de  leur  nation  etant  dans  les  ports  et  les  rades  de 
France ; 

"  Considerant  qu'un  vaisseau  neutre  ne  pent  etre  indofiniment  con- 
sidere  comme  lieu  neutre,  et  que  la  protection  qui  lui  est  accordee 
dans  les  ports  fran5ais,  ne  saurait  dessaisir  la  juridiction  territoriale 
j)Our  tout  ce  qui  touche  aux  interets  de  I'Etat ; 

"Qu'ainsi,  le  A^aisseau  neutre  admis  dans  un  port  de  TEtat  est  de 
plein  droit  soumis  aux  lois  de  police  qui  regissent  le  lieu  oh  il  est 
re^u  ; 

"Que  les  gens  de  son  equipage  sont  egalemeut  justiciables  des  tri- 
bunaux  du  pays  pour  les  delits  qu'ils  y  commettraient,  meme  a  bord, 
en  vers  des  personnes  etrangeres  a  I'equipage,  ainsi  que  pour  les  con- 
ventions civiles  qu'ils  pourraient  faire  avec  elles  ; 

"  Mais  que  si  j  usque  la  la  juridiction  territoriale  est  hors  de  doute, 


122  TERRITORIAL   JURISDICTION.  [PART  I. 

il  n'en  est  pas  aiiisi  a  1'  egard  ties  delits  qui  se  comraetent  a  bord  du 
vaisseau  iieutre  de  la  part  d'uu  homnie  de  1'  equipage  neutre  envers 
un  autre  homrae  du  meme  equipage  ; 

"  Qu  en  ce  cas,  les  droits  de  la  puissance  neutre  doivent  Otre  res- 
pectes,  counne  s'agissant  de  la  discipline  interieure  du  vaisseau, 
dans  laquelle  Tautorite  locale  ne  doit  pas  s'ingerer  toutes  les  fois 
que  son  seeours  n'est  pas  reclame  ou  que  la  tranquillite  du  port  n'est 
pas  coniprcanise; 

'•  Est  d'avis  que  cette  distinction,  indiquee  par  le  rapport  du  grand 
juge  et  confornie  a  I'usage,  est  la  seule  regie  qu'il  convienne  de  suivre 
en  cette  matiere ; 

"  Et,  appliquant  cette  doctrine  aux  deux  especes  particulieres  pour 
lesquelles  ont  reclame  les  consuls  des  Etats-Unis ; 

"  Considerant  que  dans  I'une  de  ces  affaires,  il  s'agit  d'une  rixe 
passee  dans  le  canot  du  navire  American,  le  Xewton,  entre  deux 
matelots  du  meme  navire,  et  dans  Tautre  d'une  blessure  grave  faite 
l^ar  le  capitaine  en  second  du  navire  la  SaUy  a  un  de  ses  matelots 
pour  avoir  dispose  du  canot  sans  son  ordre ; 

"  Est  d'avis  qu'il  y  a  lieu  d'accueillir  la  reclamation  et  dMnterdire 
aux  tribunaux  franyais  la  conuaisance  des  deux  affaires  precitees." 


THE  "  TEMPEST." 

CoL'KT  OF  Cassation,  1859. 
(Ortolan:  Diploniatle  de  la  Mer,   I.,  455.) 

The  French  courts  take  jurisdiction  in  tlie  case  of  a  murder  committed  on  board 
a  foreign  merchant  vessel  lying  in  a  French  port,  on  the  ground  that  such  a  grave 
crime  amounts  to  a  disturbance  of  the  peace  of  the  port. 

In  the  cases  of  the  >Salli/  and  the  Xeiclon,  by  a  decree  of  the 
Council  of  State,  representing  the  political  department  of  thegovern- 
nient,  the  French  courts  were  prevented  from  exercising  jurisdiction. 
But  afterwards,  in  1859,  in  the  case  of  Sally,  the  mate  of  an  Ameri- 
can merchantman,  the  Tempest^  who  had  Icilled  one  of  the  crew  and 
severely  wounded  another  on  board  the  ship  in  the  port  of  Havre, 
the  Court  of  Cassation,  the  highest  judicial  tribunal  of  France,  upon 
full  consideration  held,  while  the  convention  of  1853  was  in  force, 
that  the  French  courts  had  rightful  jurisdiction,  for  reasons  whicli 
sufficiently  appear  in  the  following  extract  from  its  judgment : 

"Considering  that  it  is  a  principle  of  the  law  of  nations  that  every 
state  has  sovereign  jurisdiction  throughout  its  territory ; 


OHAr.  il]  the  "tempest."  123 

"  Considering  that  by  the  terms  of  article  3  of  the  Code  Naixileon 
the  laws  of  police  and  safety  bind  all  those  who  inhabit  Frencli  terri- 
tory, and  that  consequently  foreigners,  even  franseuntes,  find  them- 
selves subject  to  those  laws  ; 

"  Considerhig-  that  merchant  vessels  entering  the  port  of  a  nation 
other  than  that  to  which  they  belong  cannot  be  withdrawn  from  the 
territorial  jurisdiction,  in  any  case  in  which  the  interest  of  the  state 
of  which  that  port  forms  part  finds  itself  concerned,  without  danger 
to  good  order  and  to  the  dignity  of  the  government ; 

"  Considering  that  every  state  is  interested  in  the  repression  of 
crimes  and  offenses  that  may  be  committed  in  the  ports  of  its  terri- 
tory, not  only  by  the  men  of  the  ship's  company  of  a  foreign  merchant 
vessel  toward  men  not  forming  part  of  that  company,  but  even  by 
men  of  the  ship's  company  among  themselves,  whenever  the  act  is  of 
a  nature  to  compromise  the  tranquillity  of  the  port,  or  the  intervention 
of  the  local  authority  is  invoked,  or  the  act  constitutes  a  crime  by 
common  law,  (droit  commun,  the  law  common  to  all  civilized  nations,) 
the  gravity  of  which  does  not  permit  any  nation  to  leave  it  unpun- 
ished, Avithout  impugmng  its  rights  of  jurisdictional  and  territorial 
sovereignty,  because  that  crime  is  in  itself  the  most  manifest  as  well 
as  the  most  flagrant  violation  of  the  laws  which  it  is  the  duty  of 
every  nation  to  cause  to  be  respected  in  all  parts  of  its  territory." 

[Article  VIII.  of  the  Treaty  of  1853,  referred  to,  stipulates  that, 
"  the  respeotive  Consuls-General,  Consuls,  Vice-Consuls,  or  Consular 
Agents,  shall  have  exclusive  charge  of  the  internal  order  of  the  mer- 
chant-vessels of  their  nation,  and  shall  alone  take  cognizance  of 
dift'erences  which  may  arise,  either  at  sea  or  in  port,  between  tlie 
captain,  officers  and  crew,  without  exception,  particularly  in  reference 
to  the  adjustment  of  wages  and  the  execution  of  contracts.  The 
local  authorities  shall  not,  on  any  pretext,  interfere  in  these  differ- 
ences, but  shall  lend  forcible  aid  to  the  Consuls,  when  they  may  ask 
it,  to  arrest  and  imprison  all  persons  composing  the  crew  whom  they 
may  deem  it  necessary  to  confine.  Those  persons  shall  be  arrested 
at  the  sole  request  of  the  Consuls,  addressed  in  writing  to  the  local 
authority,  and  supported  by  an  oflficial  extract  from  the  register  of 
the  ship  or  the  list  of  the  crew,  and  shall  be  held,  during  the  whole 
time  of  their  stay  in  the  port,  <\.t  the  disposal  of  the  Consuls.  Their 
release  shall  be  granted  at  the  mere  request  of  the  Consuls  made  in 
writing.  The  expenses  of  the  arrest  and  detention  of  those  persons 
shall  be  paid  by  the  Consuls."] 


,24  TERRITOKIAL   JURISDICIIO:^;.  [PAET  L 


-  L'AXEMOXE." 

Supreme  Court  of  Mexico,  1^75. 
{Journal  de  Droit  International  Prive,  1870,  p.  41o.) 

"Wliere  murder  is  committed  by  one  Frenclimin  upon  another,  on  board  a 
French  merchant  vessel,  at  anclior  in  a  Mexican  port  ;  held,  that  it  is  not  neces- 
sarily a  disturbance  of  the  peace  of  the  port,  and  therefore  the  Mexican  courts 
will  not  assume  jurisdiction  of  the  case. 

"  Vii  renquete  relative  Ti  riioinicide  coinmis  le  3  octobre  1875  an 
soil',  sur  la  persoiiiie  du  matelot  Auguste  Duraiid,  pav  M.  Eugene 
Antoni,  capitaine  du  batiment  franyais  VA?ie//iojte,  mouille  ^  File  de 
Carmen,  juridiction  de  Campeche,  et  faite  en  consequence  du  recours 
en  supplique  foruic  par  ledit  capitaine  contre  la  decision  du  tribunal 
de  circuit  de  Yucatan,  Campeche,  Tabasco  et  Chiapas,  declarant 
que  les  tribunaux  federaux  mexicains  sont  competents  pour  connaitre 
du  susdit  homicide  •,  vu  les  requisitions  du  citoyen  Fiscal  et  la 
defense  du  licencie  Sanchez  Azcona,  conseil  d' Antoni ; 

"Considerant  qu'il  n'est  pas  etabli  que  le  deht  en  question  ait 
trouble  la  tranquillite  des  habitants  du  port  de  Tile  de  Carmen,  ni 
que  les  marins  et  autres  personnes  qui  se  trouvaient  ^  bord  dudit 
batiment  aient  demande  protection  aiix  autorites  mexicauies,  ni 
forme  une  accusation  d'homicide,  mais  qu'ils  ont  simplement  porte 
a  terre  le  cadavre  de  Durand,  afin  de  rendre  compte  a  I'autorite ; 

"  Qui'l  n'existe  point  de  traites  entre  la  Eepublique  raexicahie  et 
la  France,  qu'en  consequence  le  present  cas  doit  Otre  regi  par  le 
droit  de  reciprocite ; 

"  Qu'  Antoni  comme  Durand  sont  de  nationalite  f  ranyaise  et  que  le 
batiment  Wbiernoiie  est  convert  par  le  pavilion  franyais ;  que  la 
victime  n'est  point  une  personue  etrangere  a  I'equipage  ; 

"  D'ou  il  resulte  qu'on  ne  se  trouve  en  presence  d'aucune  des  cir- 
constances  qui,  d'apres  le  paragraphe  3  de  I'article  189  du  Code 
penal  et  conformement  an  droit  de  reciprocite  peuvent  donner  com- 
petence a  la  juridiction  mexicaine ; 

"Par  ces  motifs  et  conformement  aux  requisitions  du  citoyen 
Fiscal  de  cette  Cour  supreme, 

"  Reformons  la  decision  du  tribunal  de  circuit  de  Yucatan,  Cam- 
peche, Tabasco  et  Chiapas,  en  date  du  12  novembre  1875,  inflrmant 
celle  du  tribunal  de  district  de  Campeche,  du  20  octobre  precedent, 


CHAP.  II.]  "  l'axemoxe."  125 

et  (lucidons  que  cette  derniere  sentence  sortira  son  plein  et  enlier 
eifet;  en  conseqnence  declarons  les  autoritos  mexicaines  inconi- 
petentes  pour  connaitre  des  faits  qui  se  sont  passes  il  bord  du  bati- 
ment  franyais  VA/temo?ie,  niouillo  dans  le  port  de  Carmen,  le  3 
octobre  dernier  au  soir;  et  ordonnons  la  mise  immediate  en  liberto 
des  i)ersonnes  qui  out  etc  arretees  par  suite  des  susdits  faits  ; 

"  Ainsi  resolu  a  la  majorite  des  voix  par  les  citoyens  president  et 
conseillers  composant  la  premiere  charabre  de  la  C(jur  supreme  de 
justice  des  Etats-Unis  mexicains. 

"  Signe  :  Iglesias. — Altamirano. — Anza. — Echeverria. — Guzman. — 
Aguilar,  secretaire !  "  ^ 

1  Parasraph  3  of  article  189  of  the  Mexican  Penal  Code  referred  to  in  the  decision 
is  as  follows  : 

"  Sont  consideres  comme  executes  sur  le  territoire  de  la  R^publique :  18  .  . .  28 .  . . 
;38  . . .  les  delits  commis  a  bord  d'un  navire  marchand  etranger  mouille  dans  un 
port  national  ou  dans  les  eaux  territoriales  de  la  Republique,  si  le  delinquant  on 
I'oflfense  ne  font  pas  partie  de  I'equipage  ou  s'  il  y  a  en  perturbation  de  la  tranquillite 
du  port.     Dans  le  cas  contraire,  on  suivra  le  droit  de  reciprocite." 

The  Circuit  Court  had  assumed  jurisdiction  of  the  case  on  grounds  very  similar 
to  those  upon  which  the  Supreme  Court  of  the  United  States  decided  the  case  of 
Wildenhus  : 

"  Le  tribunal  de  circuit  fondait  son  infirmation  sur  les  motifs  suivants  : 

"Tons  les  marins  de  I'c^quipage,  au  nombre  de  sept,  avaient  retire  de  I'eau  le 
cadavre  de  la  victime  et  I'avaient  porte  a  terre  ;  la,  ils  avaient  rendu  compte  a 
I'autorite  et  fait  leurs  declarations. 

"  Lorsqu'un  crime  ou  delit  de  droit  commun  commis  a  bord  d'un  navire  mar- 
chand etranger  a  trouble  la  tranquillite  du  port,  les  autorites  du  pays  sont  compe- 
tentes  pour  en  connaitre. 

"  Ces  autorites  sont  egalement  competentes  lorsque  les  interesses  ont  reclame 
leur  protection. 

"L'liomicide  est  un  delit  public  qui,  meme  commis  sur  desparticuliers,  menace 
la  securite  de  tons. 

"  Par  le  seul  fait  de  s'etre  adresses  a  I'autorite  locale  en  lui  presentant  le  cadavre 
de  Durand,  pour  lui  permettre  de  faire  une  enquete  et  de  chatier  le  coupable,  les 
marins  ont  demande  aide  et  protection  a  I'autorite  du  port  et  se  sont  soumis  a  sa 
juridiction." 

In  comparing  this  case  with  that  of  the  Tempest,  the  counsel  for  the  defense  said: 
"  Ce  n'est  pas  comme  pour  le  crime  commis  au  Havre  en  1859  a  bord  du  navii'e  ame- 
ricain  le  Tempest  ;  la,  les  autorites  fran^aises  durent  intervenir  (tant  1' emotion  etait 
grandel)  pour  proteger  le  coupable  contre  les  marins  du  port  et  les  habitants  de  la 
ville  qui  lui  eussent  inevitablement  fait  application  de  ialoi  de  Lyuch." 


126  TEKKITOUI-iL    JUltlSDICTIOX.  [PAKT  I. 


CASE  OF  WILDENHUS. 

Supreme  Coukt  of  the  United  States,  1886. 
(120  U.  S.  Reports,  1.) 

Wliere  a  uierchant  vessel  is  found  in  a  foreign  port,  it  is  generally  understood 
that  all  matters  of  discipline  and  all  things  done  on  board  which  affect  only  the 
vessel  or  those  belonging  to  her,  or  which  do  not  involve  the  peace  or  dignity  of 
the  country,  or  the  tranquillity  of  the  port,  should  be  left  by  the  local  government 
to  be  dealt  with  by  the  authorities  of  the  nation  to  which  the  vessel  belongs. 

But  if  crimes  are  committed  on  board  of  a  character  to  disturb  the  tranquillity 
of  the  port,  the  courts  of  the  country  should  take  jtirisdiction.  And  murder  is 
held  to  be  such  a  crime. 

While  the  Belgian  steamer  "  Xoordland  "  was  moored  to  a  dock 
in  Jersey  Citj'-,  Xew  Jersey,  an  affray  arose  between  decks  in 
which  Joseph  AVildenhus  killed  one  Fijeus.  Wildenhus  Avas  ar- 
rested by  the  Jersey  City  authorities  ;  whereupon  the  Belgian  con- 
sul applied  to  the  U.  S.  circuit  court  for  Xew  Jersey,  for  his  release 
upon  a  writ  of  habeas  corpus. 

The  court  refused  to  deliver  the  prisoner,  and  to  reverse  that 
decision.     An  appeal  is  taken  to  this  court.  , 

Waite,  C.  J.,  delivered  the  opinion  of  the  court,  from  which  the 
following  are  extracts. 

"  The  courts  of  the  United  States  have  power  to  issue  writs  of 
haheas  corpus  which  shall  extend  to  prisoners  in  jail  when  they  are 
in  '  custody  in  violation  of  the  Constitution  or  a  law  or  treaty  of  the 
United  States,'  and  the  question  we  have  to  consider  is,  Avhether 
these  prisoners  are  held  in  violation  of  the  provisions  of  the  exist- 
ing treaty  between  the  United  States  and  Belgium. 

"It  is  i^art  of  the  law  of  civilized  nations  that  when  a  merchant 
vessel  of  one  country  enters  the  ports  of  another  for  the  purposes  of 
trade,  it  subjects  itself  to  the  law  of  the  place  to  which  it  goes,  unless 
by  treaty  or  otherwise  the  two  countries  have  come  to  some  differ- 
ent understanding  or  agreement.  *  *  *  .Vnd  the  English  judges 
liave  uniformly  recognized  the  rights  of  the  courts  of  the  country  of 
which  the  port  is  part  to  punish  crimes  committed  by  one  foreigner 
on  another  in  a  foreign  merchant  ship.  *  *  *  As  the  owner  has  vol- 
untarily taken  his  vessel  for  his  own  private  purposes  to  a  place 


CHAP.  II.]  CASE   OF    WILDENHUS.  127 

within  the  dominion  of  a  government  other  than  his  own,  and  from 
which  he  seeks  protection  during  his  stay,  he  owe.s  that  government 
such  allegiance  for  the  time  being  as  is  due  for  the  prijtection  to 
which  he  becomes  entitled. 

"  From  experience,  however,  it  was  found  long  ago  that  it  \^-ould 
be  beneficial  to  commerce  if  the  local  government  would  abstain 
from  interfering  with  the  internal  discipline  of  tlie  ship,  and  the 
general  regulation  of  the  rights  and  duties  of  the  officers  and  crew 
towards  the  vessel  or  among  themselves.  And  so  by  comity  it 
came  to  be  generally  understood  among  civilized  nations  tliat  all 
matters  of  discipline  and  all  things  done  on  board  which  affected 
only  the  vessel  or  those  belonging  to  her,  and  did  not  involve  the 
peace  or  dignity  of  the  country,  or  the  tranquillity  of  the  port,  should 
be  left  by  the  local  government  to  be  dealt  with  by  the  authorities 
of  the  nation  to  which  the  vessel  belonged  as  the  laws  of  that  nation 
or  the  interest  of  its  commerce  should  require.  But  if  crimes  are 
committed  on  board  of  a  character  to  disturb  the  peace  and  tran- 
quillity of  the  country  to  which  the  vessel  has  been  brought,  the 
offenders  have  never  by  comity  or  usage  been  entitled  to  any  exemp- 
tion from  the  operation  of  the  local  laws  for  their  punishment,  if  the 
local  tribunals  see  fit  to  assert  their  authority. 

"  Such  being  the  general  public  law  on  this  subject,  treaties  and 
conventions  have  been  entered  into  by  nations  having  commercial 
intercourse,  the  purpose  of  which  was  to  settle  and  define  the  rights 
and  duties  of  the  contracting  parties  with  respect  to  each  other  in 
these  particulars,  and  thus  prevent  the  inconvenience  that  might 
arise  from  attempts  to  exercise  conflicting  jurisdictions.  *  *  * 

"It  ***  appears  that  at  first  provision  was  made  only  for  giving 
consuls  police  authority  over  the  interior  of  the  ship  and  jurisdic- 
tion in  civil  matters  arising  out  of  disputes  or  differences  on  board, 
that  is  to  say,  between  those  belonging  to  the  vessel.  Under  this 
police  authority  the  duties  of  the  consuls  were  evidently  confined  to 
the  maintenance  of  order  and  discipline  on  board.  This  gave  them 
no  power  to  punish  for  crimes  against  the  peace  of  the  country.  In 
fact,  they  were  expressly  prohibited  from  interfering  with  the  local 
police  in  matters  of  that  kind.  The  cases  of  the  Sally  and  the 
Xeicton  are  illustrative  of  this  position.  That  of  the  Sallt/  related 
to  the  discipline  of  the  ship  and  that  of  the  Newton  to  the  mainte- 
nance of  order  on  board.  In  neither  case  was  the  disturbance  of  a 
character  to  affect  the  peace  or  the  dignity  of  the  country. 

"  In  the  next  conventions,  consuls  were  simply  made  judges  and 
arbitrators  to  settle  and  adjust  differences  between  those  on  board. 
This  clearly  related  to  such  differences  between  those  belonging  to 


128  TERRITORIAL   JURISDICTION.  [PART  I. 

the  vessel  as  are  capable  of  adjustment  and  settlement  by  judicial 
decision  or  by  arbitration,  for  it  simply  made  the  consuls  judges  or 
arbitrators  in  such  matters.  That  would  of  itself  exclude  all  idea  of 
punishment  for  crimes  against  the  state  which  affected  the  peace 
and  tranquillity  of  the  port ;  but,  to  prevent  all  doubt  on  this  sub- 
ject, it  was  expressly  provided  that  it  should  not  apply  to  differ- 
ences of  that  character. 

"  Xext  came  a  form  of  convention  which  in  terms  gave  the  consuls 
authority  to  cause  proper  order  to  be  maintained  on  board  and  to 
decide  disputes  between  the  officers  and  crew,  but  allowed  the  local 
authorities  to  interfere  if  the  disorders  taking  place  on  board  were 
of  such  a  nature  as  to  disturb  the  public  tranquillity,  and  that  is  sub- 
stantially all  there  is  in  the  convention  with  Belgium  which  we  have 
now  to  consider.  This  treaty  is  the  law  which  now  governs  the 
conduct  of  the  United  States  and  Belgium  towards  each  other  in 
this  particular.  Each  nation  has  granted  to  the  other  such  local 
jurisdiction  Avithin  its  own  dominion  as  may  be  necessary  to  main- 
tain order  on  board  a  merchant  vessel,  but  has  reserved  to  itself  the 
right  to  interfere  if  the  disorder  on  board  is  of  a  nature  to  disturb 
the  public  tranquillity. 

"  The  treaty  is  part  of  the  supreme  law  of  the  United  States,  and 
has  the  same  force  and  effect  in  Xcav  Jersey  that  it  is  entitled  to 
elsewhere.  If  it  gives  the  consul  of  Belgium  exclusive  jurisdiction 
over  the  offense  which  it  is  alleged  has  been  committed,  within  the 
territory  of  Xew  Jersey,  we  see  no  reason  why  he  may  not  enforce 
his  rights  under  the  treaty  by  writ  of  habeas  corpus  m  any  proper 
court  of  the  United  States.  This  being  the  case,  the  only  important 
question  left  for  our  determination  is  whether  the  thing  which  has 
been  done — the  disorder  that  has  arisen — on  board  this  vessel  is  of  a 
nature  to  disturb  the  public  peace,  or,  as  some  writers  term  it,  the 
'  public  repose  '  of  the  people  who  look  to  the  State  of  Xew  Jersey 
for  their  protection.  If  the  thing  done — '  the  disorder,'  as  it  is  called 
in  the  treaty — is  of  a  character  to  affect  those  on  shore  or  in  the  port 
when  it  becomes  known,  the  fact  that  only  those  on  the  ship  saw  it 
when  it  was  done  is  a  matter  of  no  moment.  Those  who  are  not  on 
the  vessel  pay  no  special  attention  to  the  mere  disputes  or  quarrels 
of  the  seamen  while  on  board,  whether  they  occur  under  deck  or 
above.  Xeither  do  they  as  a  rule  care  for  anything  done  on  board 
which  relates  only  to  the  discipline  of  the  ship,  or  to  the  preservation 
of  order  and  authority.  Xot  so,  however,  with  crimes  which  from 
their  gravity  awaken  a  public  interest  as  soon  as  they  become  known, 
and  especially  those  of  a  character  which  every  civilized  nation  con- 
siders itself  bound  to  provide  a  severe  punishment  for  when  com- 


CHAP.  II.]  THE    "  RELIANCE."  129 

niitted  within  its  own  jurisdiction.  In  such  cases  inquiry  is  certain 
to  be  instituted  at  once  to  ascertain  how  or  why  the  tiling  was  done, 
and  the  popular  excitement  rises  or  falls  as  the  news  spreads  and 
the  facts  become  known.  It  is  not  alone  the  publicity  of  the  act,  or 
the  noise  and  clamor  which  attends  it,  that  fixes  the  nature  of  the 
crime,  but  the  act  itself.  If  that  is  of  a  character  to  awaken  public 
interest  when  it  becomes  known,  it  is  a  disorder,  the  nature  of  which 
is  to  atfect  the  community  at  large,  and  consequently  to  invoke  the 
power  of  the  local  government  whoso  ijeople  have  been  disturbed 
by  what  was  done.  The  very  nature  of  such  an  act  is  to  disturb  the 
(luiet  of  a  peaceful  community,  and  to  create,  in  the  language  of  the 
treaty  a  'disorder'  which  will  'disturb  tranquillity  and  public  order 
on  shore  or  in  port.'  The  principle  which  governs  the  whole  matter 
is  this  :  Disorders  which  disturb  only  the  peace  of  the  ship  or  those 
on  board  are  to  be  dealt  with  exclusively  by  the  sovereignty  of  the 
home  of  the  ship,  but  those  which  disturb  the  public  peace  may  be 
suppressed,  and,  if  need  be,  the  offenders  punished  by  the  proper  au- 
thorities of  the  local  jurisdiction.  It  may  not  be  easy  at  all  times  to 
determine  to  which  of  the  two  jurisdictions  a  particular  act  of  dis- 
order belongs.  Much  will  undoubtedly  depend  on  the  attending  cir- 
cumstances of  the  particular  case,  but  all  must  concede  that  felonious 
homicide  is  a  subject  for  the  local  jurisdiction,  and  that  if  the  proper 
authorities  are  proceeding  with  the  case  in  a  regular  way,  the  consul 
has  no  right  to  interfere  to  prevent  it.  That,  according  to  the  petition 
for  the  habeas  corjyuSj.is  this  case." 


THE  "RELIAXCE." 

U.  S.  Circuit  Court  for  So.  Dist.  of  N.  Y.,  1848. 

(1  Abbott's  Atlm.  Rep.,  817.) 

The  Reliance,  a  British  vessel,  rescued  goods  from  the  wreck  of  another  British 
vessel;  and  afterwards  arrived  in  the  port  of  New  York,  and  instituted  proceed- 
ings for  salvage.     Jurisdiction  was  refused. 

This  was  a  libel  in  rem  filed  by  the  owner,  master  and  crew  of  the 
bark  Reliance  against  One  Hundred  and  Ninety-four  shawls  salved 
by  the  libellants  from  the  wreck  of  the  Lady  Kennewaij  to  recover 
salvage  compensation. 

The  Reliance  was  a  British  vessel  which  left  Liverpool  bound  to 
New  York.  Near  the  coast  of  England,  she  fell  in  with  the  Lad\j 
Kenneioay  and  boarded  her,  finding  no  person  on  board. 

The  Lady  Kenneioay  was    a  British  East  Indiaman,  owned  in 


130  TEKRITOKIAL   JURISDICTION.  [fAET  L 

London,  on  her  way  to  London  from  Bombay.  The  master  of  the 
Reliance  ordered  several  cases  containing  shawls  to  be  taken  from 
her,  and  then  abandoned  her.  The  Reliance  pursued  her  way  to 
New  York,  where  she  arrived  December  1,  1847. 

A  libel  was  filed  against  the  chief  part  of  the  articles  brought 
from  the  Ladr)  Kennexoay.  The  British  consul,  by  leave  of  the  court, 
intervened  in  behalf  of  the  unknown  British  owners,  praying  the 
court  to  order  restitution  for  their  benefit  of  the  property  attached, 
after  allowing  the  libellants  a  reasonable  salvage,  if,  in  the  judg- 
ment of  the  court,  "  they  proved  a  case  of  derelict,  and  their  conse- 
quent right  to  salvage." 

The  individual  claimants,  as  well  as  the  consul,  set  up  defenses 
against  the  award  of  salvage,  charging  waste,  damage,  and  destruc- 
tion of  the  apparel  and  stores  of  the  vessel. 

It  is  insisted  that  the  court  should  decline  jurisdiction  in  the 
case,  because  the  Lady  Kennev^ay  was  an  English  vessel,  then  on  a 
homeward  voyage,  with  her  cargo  for  an  English  market,  and  the 
Reliance  at  the  time,  was  an  English  vessel,  with  a  British  crew  on 
board,  who  had  signed  British  articles  and  that  accordingly  both 
vessels  and  libellants  were  bound  to  return  to  terminate  the  voyage 
at  a  British  port. 

Betts,  J. —  u  *  *  *  ^Ys  a  general  principle,  the  citizens  or  subjects 
of  the  same  nation  have  no  right  to  invoke  a  foreign  tribunal  to 
adjudicate  between  them,  as  to  matters  of  tort  or  contract  solely 
affecting  themselves.  It  rests  in  the  discretion  of  the  court,  whose 
authority  is  invoked,  to  determine  whether  it  Avill  take  cognizance 
of  such  matters  or  not.  *  *  * 

"  As  maritime  courts  proceed  upon  a  common  rule  of  right  and 
compensation  in  salvage  cases,  the  question  of  jurisdiction  in  that 
class  of  actions  will  seldom  l)e  raised  or  regarded  before  them. 

"  The  courts  will  take  cognizance  of  those  cases  as  matters  of 
course,  if  either  party  is  territorially  within  the  jurisdiction  of  the 
court ;  and  the  property  being  brought  within  their  jurisdiction, 
although  tlie  salvors  and  claimants  may  be  citizens  or  subjects  of 
different  nations,  the  court  will  unhesitatingly  dispose  of  the  sub- 
ject, if  satisfied  that  the  whole  right  is  before  it, — salvage  being 
essentially  a  question  of  W\%jxis  gentium.  *  *  * 

"I  find  no  authority  of  weight  which  imposes  on  the  courts  of  our 
country  the  necessity  of  determining  controversies  between  for- 
eigners resident  abroad,  either  in  common-law  actions,  transitory  in 
their  nature,  or  maritime  proceedings  when  the  remedy  is  in  rem. 

"If  the  doctrine  were  peremptory,  imparting  to  suitors  the  right 
to   such  aid,  and  imposing  on  courts  the   obligation  to   afford  it, 


CHAr.  II.]  THE    "  RELIANCE."  131 

actions  for  supplies  and  materials,  on  charter-parties  and  ])ills  of 
lading,  or  by  mechanics  for  labor,  would  be  comprehended  within 
the  class,  equally  with  suits  for  wages  on  bottomry  bonds  or  for 
salvage  compensation. 

"  I  am  satisfied  the  law  is  not  so.  In  my  judgment  it  would  be 
lamentable  if  courts  weve  compelled  to  defer  the  business  of  the 
citizens  of  the  country  to  bestow  their  time  in  litigation  between 
parties  owing  no  allegiance  to  its  laws,  and  contributing  in  no  way 
to  its  support.  Should  it  transpire,  in  the  progress  of  the  litigation, 
that  the  law  of  the  domicile  of  the  parties  must  be  ascertained  in 
order  to  adjudge  rightly  on  their  claims,  or  that  witnesses  must  be 
examined  there  to  fix  the  facts  in  controversy,  the  court  might  be 
compelled  to  suspend  its  movement  and  wait  until  these  cardinal 
particulars  could  be  supplied  from  abroad.  Every  tribunal  expe- 
riences the  inconvenience  and  unsatisfactoriness  of  so  settling  con- 
troversies between  those  even  who  can  have  no  other  means  of  re- 
dress, and  will  recognize  the  value  of  the  principle  which  enables 
them,  in  regard  to  foreigners,  to  remit  their  controversies  to  their 
home  tribunals,  where  the  law  is  known,  and  the  facts  can  be  more 
surely  determined.  This  court  has,  in  repeated  instances,  acted 
upon  this  acceptation  of  the  law;  and  believing  it  to  be  the  sound 
and  safe  rule,  I  shall  adhere  to  it  in  all  cases  authorizing  that  exer- 
cise of  discretion. 

"The  question  to  be  considered  is,  whether,  in  this  case,  the  rights 
of  parties  would  be  best  promoted  by  retaining  the  case  and  dispos- 
ing of  the  subject  here,  or  by  remitting  it  to  the  home  courts  of  the 
salvors  and  claimants. 

"  The  answer  advances  many  grave  imputations  against  the  con- 
duct of  the  master  and  seamen  on  board  the  wreck  and  after  the 
property  came  into  their  possession,  and  these  charges  are  not  Avith- 
out  color  of  proof  to  support  them.  Their  case  does  not,  accord- 
ingly, come  before  the  court  with  the  most  persuasive  claims  to  its 
I  interposition  and  favor.  When  salvage  services  are  eminently  mer- 
I  itorious,  and  the  only  inquiry  to  be  made  is  the  rate  of  award  to  be 
allotted.  Admiralty  Courts  would  be  solicitous  to  give  every  practi- 
cable despatch  to  suits  by  the  salvors,  and  relieve  them  both  from 
delay  and  expense  in  obtaining  their  just  reward.  It  would  scarcely 
occur  that  any  court  would  withhold  its  aid  from  such  suitors.  It 
is  quite  different  when  the  foreign  owner  of  the  property  charges 
his  fellow-subject  with  embezzlement  and  spoliation,  and  other 
wanton  misconduct  in  respect  to  it,  and  prays  the  privilege  to  con- 
test his  claim  to  compensation  before  the  authorities  of  their  com- 
mon country.  *  *  * 


132  TERPJTOIUAL  JURISDICTION.  [PART  I, 

"  The  termination  of  the  voyage  of  the  Reliance  was  in  England, 
where  it  is  to  be  presumed  she  would  arrive  within  a  short  period 
after  leaving  this  port,  and  it  is  most  fitting  that  the  question  of  the 
obligations  and  privileges  of  her  master  and  crew,  in  respect  to  serv- 
ices rendered  a  Biitish  vessel,  a  wreck  or  in  distress  on  the  English 
coast,  should  be  determined  in  the  courts  of  that  nation.  *  *  * 

"  As  tlie  libellants  may  not  reclaim  the  property  attached  in  their 
behalf,  the  decree  Avill  make  provision  enabling  the  claimants  who 
have  intervened  in  their  own  right,  and  the  British  Consul  in  behalf 
of  unknown  owners,  to  take  the  goods  out  of  court  and  ship  them  to 
their  port  of  destination."  ^ 

1  In  the  case  of  Aertsen  v.  Ship  Aurora  (1800),  Bee's  Adm.  Reports,  161,  the 
suit  was  brought  for  seamen's  wages  and  to  obtain  a  discharge  on  account  of  the 
captain's  ill  treatment.  In  the  course  of  the  judgment  the  judge  said  :  "From 
this  evidence  I  do  not  find  sufficient  evidence  to  entitle  these  three  men  to  tlieir 
discharge  (from  tlie  completion  of  the  voyage). 

"  (1)  Because  no  unlawful  weapon  was  used. 

"  (2)  Sufficient  provocation  for  the  captain's  acts. 

"  Tliis  is  the  case  of  a  neutral  vessel,  the  crew  of  which  are  bound  by  their  arti- 
cles to  return  to  Hamburgli,  before  they  are  entitled  to  receive  tlieir  wages,  and  the 
12th  of  tliose  articles  stipulates  that  everything  not  specified  therein  shall  be  regu- 
lated according  to  tlie  marine  law  of  Hamburgh  for  regulating  the  conduct  cf 
officers  and  seamen  aboard  vessels  belonging  to  that  place." 

The  suit  was  dismissed  with  costs. 

In  Wlllendtion  v.  The  Forsbket,  1  Peter's  Adm.,  197,  the  plaintiff,  a  sailor  on  a 
Danish  ship,  cited  his  captain  on  a  claim  for  wages.  The  judge,  in  the  course  of 
his  opinion,  says  that  his  general  rule  has  been  not  to  take  cognizance  of  disputes 
between  masters  and  crews  of  foreign  ships. 

"I  have,"  said  he,  "  *  *  *  in  peculiar  cases  *  *  *  compelled  the  payment  of 
wages  *  *  *  assisted  in  recovering  deserters  *  *  *  (and  in)  reducing  to  obedience 
perverse  and  rebellious  mariners. 

"  In  the  case  now  before  me  I  see  no  cause  to  warrant  my  taking  cognizance. 
It  is  the  duty  of  the  master  to  return  the  seaman  to  his  own  country.  This  he 
offers  to  do.  *  *  *  He  must  give  the  sailor  a  certificate  of  forgiveness  of  past 
offenses,  to  avail  him  in  his  own  country.  *  *  *  if  *  «  *  there  shall  appear  no 
deception  in  the  present  offer  (to  carry  the  seaman  home)  I  shall  not  further  inter- 
fere, but  dismiss  the  suit." 

Mr.  Hamilton  Fish,  Secretarj^  of  State,  in  a  dispatch  to  General  Schenck,  Uniteil 
States  Minister  in  London  (Xovember  8,  1873),  said  :  "  Referring  to  the  case  of 
Albert  Allen  Gardner,  master  of  the  American  ship  Anna  Camp,  tried  in  the 
County  Court  at  Liverpool,  in  May  last,  copies  of  certain  papers  relating  to  which 
were  forwarded  to  you  by  General  Badeau,  I  desire  to  call  your  attention  to  the 
claim  of  jurisdiction  put  forth  by  the  local  common-law  courts  of  Great  Britain  in 
this  and  other  similar  cases. 

"  It  seems  to  be  claimed  by  the  courts  in  question  that  their  jurisdiction  extends 
to  the  hearing  and  determining  of  causes  arising  upon  complaints  between  masters 
and  mariners  of  vessels  of  the  United  States,  not  only  where  the  occurrences  upon 
which  the  complaint  may  be  founded  took  place  within  British  ports  or  waters, 


CHAF.  II.J  ELLIS    V.  MITCHELL.  133 


ELLIS  V.  MITCHELL. 

SUPREMK  CoUliT  OF  HoXG  KoNG,   1874. 

{U.  S.  Forebjn  Relations,  1875,  000.) 

This  was  the  case  of  a  controversy  between  a  seaman  and  the  master  of  an 
American  sliip  in  regard  to  wages,  and  some  otlier  matters  in  tlie  port  of  Hong 
Kong.  The  American  consnl  at  that  place  undertook  to  (h^cide  the  dispute.  Ilcbl, 
tliat,  \n  tlie  absence  of  express  authority  under  treaty,  he  could  not  exercise  juris- 
diction in  such  matters. 

.Judj^ineut,  Small,  C.  J. : — 

"Our  decision  in  this  appeal  having  been  for  some  time  come  to, 
we  handed  to  the  registrar  oar  eonchided  judgment  and  hy  our  direc- 
tion lie  gave  it  out  on  the  7th  of  November  last.  That  decision  was 
in  the  following  terms :  '  We  have  fully  considered  all  the  facts  in 
this  case  and  the  very  able  arguments  which,  on  the  part  of  tlie 
appellant,  Mr.  Kingsmill  submitted  to  us.  The  respondent  did  not 
appear.  We  are  of  opinion  that  the  appellant  has  failed  to  show 
that  the  decision  in  the  summary  branch  of  this  court  is  wrong.  It 
is  our  duty,  therefore,  to  dismiss  this  appeal.'  The  respondent  has 
incurred  no  costs  ;  we  say  nothing  as  to  costs.  Some  questions  as 
to  the  duties  and  jurisdiction  of  consuls  have  arisen  in  tliis  case  to 
which  we  should  wish  to  advert,  but  as  these  questions  arise  out  of 
this  case,  rather  than  lead  up  to  our  decision,  we  purpose  at  a  more 
convenient  opportunity  to  refer  to  them.  It  seems  to  us  that  a  some- 
what exaggerated  notion  as  to  the  duties  and  jurisdiction  of  consuls 
in  this  colony  is  prevalent. 

"  The  grounds  and  reasons  for  the  decision  in  this  case  were  very 
carefully  considered  and  conferred  on  between  us.  We  were  agreed 
in  the  conclusion  that  the  appeal  must  be  dismissed.  In  order  that 
the  parties  might  not  be  kept  longer  in  suspense,  we  directed  the 
decision  which  I  have  just  read  to  be  given  out  by  the  registrar  on  the 

but  also  when  the  offense  which  is  made  the  ground  of  action  was  connnitled  on 
board  the  vessel  on  the  high  seas, 

"  The  exercise  of  this  jurisdiction  by  the  common-law  courts  at  Liverpool  has 
already  been  the  cause  of  much  annoyance  and  in  some  instances  serious  incon- 
venience to  masters  and  owners  of  American  vessels,  and  if  persisted  in  may  affect 
injuriously  the  interests  of  American  shipping." 

Mr.  Fish  proceeds  to  quote  from  the  decision  of  .Judge  Betts,  in  the  case  of  the 
Reliance,  and  to  commend  the  principles  there  set  forth  as  the  only  proper  rule  to 
be  followed. 


134  TEIUIITOKIAL   JURISDICTION.  [PAKT  L 

7th  day  of  Xoveinber,  as  I  have  ah-eady  said.  There  seems  to  have 
been  a  grave  misapprehension  that  this  case  came  before  Mr.  Justice 
Snowden  as  an  appeal  from  the  decision  of  the  consul  of  the  United 
States. 

"  It  was  not  so.  From  the  first  it  was  treated  by  the  learned  judge 
as  being  untouched  by  decision,  and,  indeed,  as  a  matter  entirely 
nltra  vires  the  consul  of  the  United  States.  True  it  is  that  a  dis- 
charge of  the  plaintiff  from  the  shi^D,  and  an  account  taken  in  xhi 
presence  of  the  consul  of  wages  earned,  were  produced  and  relied  on 
by  the  defendant,  the  master  of  the  ship,  as  an  answer  to  the  plaint- 
iff's claim  ;  but  it  was  held  in  the  summary  branch  of  this  court, 
upon  the  evidence  before  it,  that  in  no  way  was  the  consul  acting  or 
intervening  judicially,  either  as  to  the  discharge,  or  as  to  the  account. 
Xo  claim  for  unlawful  dismissal  had  been  raised  before  the  consul. 
It  might  have  been  properly  raised  before  the  proper  judicial  tribunal 
of  and  within  the  United  States ;  but  no  evidence  was  adduced  to 
show  that  that  authority  was  vested  by  the  law  of  the  United  States 
in  the  consul  here.  Even  if  it  had  been  so  vested  by  any  such  law  of 
the  Union,  it  required  the  force  of  a  treaty,  and  an  act  of  Parliament, 
or  local  ordinance,  to  enable  the  consul  to  exercise  any  extra-territorial 
judicial  power  within  British  territory.  Although  some  instructions 
to  the  consuls  were  produced  to  the  court,  no  act  of  Congress  was 
produced,  nor  was  there  any  evidence  that  there  was  any  such  act, 
or  common-law  power  in  a  consul.  According  to  Chancellor  Kent's 
Commentaries,  vol.  T.,  p.  50,  et  seq.,  '  consuls  are  commercial  agents. 
*  *  *  In  some  places  they  have  been  invested  with  judicial  powers 
over  disputes  between  their  own  merchants  in  foreign  ports  ;  but  in 
the  commercial  treaties  made  by  Great  Britain  there  is  rarely  any 
stipulation  for  clothing  them  with  judicial  authority,  except  in 
treaties  with  the  Barbary  powers.  And  in  England  it  has  been  held 
that  a  consul  is  not  strictly  a  judicial  officer,  and  they  have  there  no 
judicial  power.'  He  cites  Wahlron  v.  Combe,  3  Taunton,  162.  The 
words  of  the  Chief-Justice  Maxsfield  there  are,  '  The  vice  consul  is 
no  judicial  officer.'  At  page  51  the  very  learned  chancellor  proceeds : 
'  Xo  government  can  invest  its  consuls  with  judicial  power  over  their 
own  subjects  in  a  foreign  country  without  the  consent  of  the  foreign 
government,  founded  on  treaty.'  At  page  52,  he  says :  '  It  is  likewise 
made  their  duty  (*.  e.  of  consuls),  where  the  laws  of  the  country  per- 
mit, to  administer  on  the  personal  estates  of  American  citizens  dying 
within  their  consulates,'  etc.  And  in  note  (6)  he  says,  'American 
consuls  cannot  take  cognizance  of  the  offenses  of  seamen  in  foreign 
ports,  nor  exempt  the  master  from  his  own  responsibility.'  He  cites 
Ware's  Reports  (American),  3(37.     And  to  conclude  ail,  he  says  at  page 


CHAP.  II.]  ELLIS   V.  MITCHELL.  135 

5o  :  '  The  consular  convention  between  France  and  this  country  (*.  e. 
the  United  States)  in  1778  allowed  consuls  to  exercise  police  over  all 
vessels  of  their  respective  nations  within  the  interior  of  the  vessels, 
and  to  exercise  a  species  of  civil  jurisdiction  by  determining  disputes 
concerning-  wages,  and  between  the  master  and  crews  of  vessels 
belonging  to  their  own  country.  The  jurisdiction  claimed  under  the 
consular  convention  with  France  was  merely  voluntary,  and  although 
exclusive  of  any  coercive  authority,  and  we  {i.  e.  the  United  States) 
have  no  treaty  at  present  which  concedes  even  such  consular  func- 
tions.' AVe  quote  the  9th  edition  of  Kent's  Commentaries  (1858). 
We  have  before  us  the  valuable  work  of  Judge  Bouvier,  the  law- 
dictionary,  the  4tli  edition  of  1872,  and  in  it  we  find  nothing  to  vary 
all  that  Chancellor  Kent  asserts.  Parsons'  Law  of  Sliijjping,  pub- 
lished in  1809,  is  to  the  same  effect.  One  quotation  from  l^arsons, 
vol.  II.,  p.  56. 

"He  there  says,  'a  discharge  {l.  e.  of  a  seaman,)  when  made  in  a 
foreign  port,  is  required  to  be  made  before  the  consul ;  but  the  pay- 
ment of  wages  already  due  is  not.'  And  this  to  such  an  extent  that 
the  learned  author  adds, '  and  the  consul  has  no  right  to  charge  a  com- 
mission for  witnessing  the  settlement,'  in  other  words,  he  has  nothing 
to  do  with  the  settlement  of  the  wages  due  ;  a  fortiori  he  has  no  author- 
ity in  reference  to  damages  for  breach  of  contract,  or  otherwise,  be- 
tween the  master  and  the  seaman.  Now,  if  the  consul  has  no  such  au- 
thority, the  authority  nuist  be  somewhere,  and  it  cannot  be  con- 
tended, upon  any  grounds  of  which  we  are  aware,  that  this  court  has 
not  the  fullest  authority  over  all  such  disputes.  It  is  quite  clear  that 
the  legislature  of  this  country  can,  by  statute  or  ordinance,  give  extra- 
territorial powers  to  consuls,  but  as  all  such  powers  are  in  derogation 
of  the  royal  prerogative  all  such  laws  must  be  construed  strictly.  It 
appears  to  us  that  ordinance  No.  4,  of  1850,  has  no  bearing  on  the  ques- 
tion before  us.  It  relates  to  cases  of  desertion  from  ships,  and  to 
nothing  else.  Ordinance  No.  6,  of  1802,  is  prohibitory.  It  says  that 
no  British  seaman  shall  be  discharged  elsewhere  than  at  the  harbor- 
master's office,  and  that  every  seaman  discharged  from  a  foreign 
ship,  represented  by  a  consul  here,  '  shall,  within  twenty-four  hours 
of  being  discharged  at  the  office  of  his  consul,  or  vice-consul,  pro- 
duce at  the  harbor-master's  office  a  certificate  of  his  discharge.' 
Now,  this  is  not  an  enabling  statute,  and  it  gives  no  power 
to  any  consul  which  he  had  not  before.  All  it  does  is  to  assume 
that  every  discharge  of  a  foreign  seaman  will  have  been  given  at  the 
office  of  the  consulate  of  his  country.  But  for  legislation  the  dis- 
charo:e  of  a  seaman  is  a  matter  between  master  and  seaman  only. 


136  TERRITORIAL   JURISDICTION.  [PART  I. 

Xo  treaty  has  been  produced,  no  act  of  Parliament  or  ordinance  other 
than  those  above  cited,  has  bi-en  brought  to  the  notice  of  this  court. 
In  the  absence  of  any  such  we  are  driven  back  to  the  international 
htw,  as  laid  down  by  Chancellor  Kent,  page  51,  that  the  consul  of 
the  United  States  is  not  a  judicial  officer,  'that  they  have  no  judicial 
power '  and,  page  53,  that  there  is  no  treaty  w^tli  the  United  States 
which  authorizes  consuls  to  exercise  a  species  of  jurisdiction  by  de- 
termining disputes  concerning  wages  between  masters  and  crews 
belonging  to  their  own  country  in  this  colony.  We  conclude,  there- 
fore, that  the  consul  of  the  United  States  has  no  judicial  powers  or 
authority  whatever  in  this  colony  as  to  wages  or  damages  for  wrongs, 
between  United  States  masters  and  seamen,  which  the  judicial 
authorities  here  can  recognize,  but  that  this  court  must  decide  such 
questions  when  In'ought  before  it. 

"What  we  have  said  as  to  the  consul  of  the  United  States  applies 
to  consuls  from  all  other  foreign  states.  Xo  such  claim  is,  w^e 
believe,  set  up  in  any  other  [)art  of  theBritisli  dominions.  In  China, 
every  consul  of  every  foreign  power  has  judicial  authority  over  its 
own  subjects  ;  but  this  extra-territorial  jurisdiction  is  the  result  of 
express  treaty,  and  is  conferred  on  them  by  the  enactments  of  the 
legislative  authority  of  each  foreign  state.  The  exaggerated  notion 
as  to  consular  authority  here  has  probably  arisen  from  the  powers 
conceded  to  them  in  China,  but  which  are  not  conceded  here. 

"  In  a  colon}'^  so  distant  as  Hong-Kong  is  from  London,  convenience 
has  rendered  direct  communication  between  the  colonial  government 
and  consuls  here  on  many  subjects  properly  diplomatic,  convenient 
for  all  parties.  This  has  probably  tended  to  induce  an  overestimate 
of  the  position  of  consuls  here  in  reference  to  judicial  authority.  We 
feel  great  respect  for  the  consuls  in  this  colony,  both  officially  and 
personally,  but  w^e  must  see  that  the  authority  of  this  court  is  not 
curtailed  beyond  what  the  law  permits.  If  circumstances  render  it 
proper  or  convenient  that  judicial  authority  should  in  this  colony 
vest  in  consuls,  it  nmst  be  obtained  by  treaty  and  legislation.  This 
court  has  no  power  to  concede  it." 


THE   "CREOLE,"   1841. 

(mteato)C K  Internntional  Law,  Sth  Ed.,  1G5,  NotP.) 

"  The  Vjrig  C}-eole,  an  American  merchant  vessel,  sailed  from  a  port 
in  Virginia  in  1841,  bound  to  Xew  Orleans,  having  on  board  one 
hundred  and  thirty-five  slaves.     A  portion  of  the  slaves  rose  against 


CHAP.  II.]  THE    "  CREOLE."  1S7 

the  officers  and  got  complete  possession  of  tlie  vessel,  killing-  one 
passenger  and  severely  Avounding  the  captain  and  othei's  of  the  crew, 
in  the  struggle.  They  compelled  the  mate,  under  threat  of  death, 
to  navigate  the  vessel  to  Nassau,  where  she  arrived  and  came  to 
anchor.  At  the  request  of  the  United  States  consul  at  Nassau,  nine- 
teen of  the  slaves,  who  were  identified  as  having  taken  part  in  the 
acts  of  violence,  Avere  arrested  by  the  local  authorities,  and  held  to 
await  the  decision  of  the  British  Government.  As  to  the  rest  of  the 
slaves,  there  was  a  question  whether  they  got  on  shore  and  gained 
their  liberty  by  their  own  act,  or  through  the  positive  and  officious 
interference  of  the  colonial  authorities,  while  the  vessel  was  under 
the  control  of  tlie  consul  and  master.  Mr.  Webster,  Secretary  of 
State,  addressed  a  letter  to  Lord  Ashburton  on  this  subject.  His 
position  is,  that  '  if  a  vessel  of  the  United  States,  pursuing  lawful 
voyages  from  port  to  port  along  their  own  shore,  are  driven  by  stress 
of  weather,  or  carried  by  unlawful  force,  into  British  ports,  the 
government  of  the  United  States  cannot  consent  that  the  local 
authorities  in  those  ports  shall  take  advantage  of  such  misfortunes, 
and  enter  them  for  the  purpose  of  interfering  with  the  condition  of 
persons  or  things  on  board,  as  established  by  their  own  laws.  If 
slaves,  the  property  of  citizens  of  the  United  States,  escape  into 
British  territories,  it  is  not  expected  that  they  will  be  restored.  In 
that  case,  the  territorial  jurisdiction  of  England  will  have  become 
exclusive  over  them,  and  must  decide  their  condition.  But  slaves 
on  board  of  American  vessels  lying  in  British  waters  are  not  within 
the  exclusive  jurisdiction  of  England,  or  under  the  exclusive  opera- 
tion of  English  law;  and  this  founds  the  broad  distinction  Ijetween 
the  cases.  *  *  *  In  the  opinion  of  the  government  of  the  United 
States,  such  vessels,  so  driven  and  so  detained  by  necessity  in  a 
friendly  port,  ought  to  be  regarded  as  still  pursuing  their  original 
voyage,  and  turned  out  of  their  direct  course  by  disaster  or  by 
wrongful  violence ;  that  they  ought  to  receive  all  assistance  neces- 
sary to  enable  them  to  resume  that  direct  course,  etc.  *  *  *  ' 

"The  United  States  Government  demanded  the  restoration  of  the 
slaves,  which  was  refused  by  the  British  Government,  on  the  ground, 
that,  being  in  fact  at  liberty  within  the  British  dominions,  they  could 
not  be  seized  there  when  charged  with  no  crime  against  British  law, 
and  while  there  was  no  treaty  of  extradition.  This  case  Avas  then 
submitted,  as  a  private  claim  for  pecuniary  indemnity,  to  the  com- 
mission under  the  convention  of  Feb.  8,  18.5.S.  The  connnissioners 
being  unable  to  agree,  it  was  by  the  terms  of  the  convention,  referred 
to  an  umpire,  Mr.  Joshua  Bates,  of  London. 

"  In  deciding  the  case,  Mr.  Bates  stated  two  propositions  of  law  :  — 


138  TEUKITORIAL   JURISDICTION.  [PAKT  I. 

"1.  That,  as  the  shives  were  perfectly  quiet,  and  on  board  an 
American  ship  under  the  command  of  the  captain,  tlie  authorities 
sliould  have  seen  that  the  captain  was  protected  hi  his  rights  over 
tliem. 

'•  2.  That,  '  the  nuniicipal  law  of  England  cannot  authorize  a  magis- 
trate to  violate  the  law  of  nations,  by  invading  with  an  armed  force 
the  vessel  of  a  friendly  nation  that  has  committed  no  offense,  and 
forciljly  dissolving  the  relations  which,  by  the  laws  of  his  country, 
the  master  is  bound  to  preserve  and  enforce  on  board.'  "  ^ 

1  Mr.  Dana  criticises  the  decision  of  Mr.  Bates  iu  this  case.  "  It  may  be  con- 
cedeil,  as  a  general  statement,"  he  says,  "  that  local  authorities  ought  to  give  active 
aid  to  a  master  in  defending  and  enforcing,  against  the  inmates  of  his  vessel,  the 
rights  with  which  his  own  nation  has  intrusted  him,  if  these  rights  are  of  a  char- 
acter generally  recognized  among  all  nations,  and  not  prohibited  by  the  law  of  the 
place.  But  it  may  well  admit  of  doubt,  whether  the  local  authorities  must  give 
active  aid  to  the  master  against  persons  on  board  his  vessel  who  are  doing  no  more 
than  peacefully  and  quietly  dissolving,  or  refusing  to  recognize  a  relation  which 
exists  only  by  force  of  the  law  of  tlie  nation  to  which  the  vessel  belongs,  if  the  law 
is  peculiar  to  that  nation,  and  one  which  the  law  of  the  other  country  regards  as 
against  common  right  and  public  morals.  The  local  authorities  might  not  interfere 
to  dissolve  such  relations,  where  the  peace  of  the  port  or  the  public  morals  are  not 
put  in  peril  ;  but  they  might,  it  would  seem,  decline  to  lend  force  to  compel  their 
continuance.     See  also  the  adverse  criticism  of  Hall  (Int.  Law.,  od  Ed.,  p.  199). 

In  the  case  of  the  Fortuna,  1803  (5  C.  Rob.,  27),  the  ship  was  proceeded  against 
for  a  violation  of  the  blockade  of  the  Weser.  The  master  of  the  captured  vessel 
gave  as  an  excuse  for  entering  the  blockaded  place,  the  want  of  provisions,  and  a 
strong  westerly  wind.  Sir  W.  Scott  held  that  "  want  of  provisions  "  was  not  such 
an  "imperative  and  over-ruling  compulsion"'  as  to  excuse  a  breach  of  blockade. 
But  on  the  other  ground,  after  further  proof,  the  vessel  was  restored. 

In  the  case  of  United  States  v.  Bickelman,  IST-j,  92  U.  S.,  .520,  the  Supreme 
Court  emphatically  affirmed  the  rule  that  merchant  vessels  are  subject  to  the  local 
jurisdiction  when  in  foreign  ports. 

Waite,  C.  J.,  in  giving  the  opinion  of  the  court  said  :  "  As  to  thegeneral  law  of 
nations,  the  merchant  vessels  of  one  country  visiting  the  ports  of  another  for  the 
purposes  of  trade  subject  themselves  to  the  law^s  which  govern  the  port  they  visit, 
so  long  as  they  remain  ;  and  this  as  well  in  war  as  iu  peace,  unless  it  is  otherwise 
provided  by  treaty." 


CHAP.  II.]  DUKE   or   KiiTEKDA'S   CASE.  139 


Section  13. — Right  of  Asylum. 


(a)   In  Legations. 
DUKE  OF  RIPPEKDA'S  CASE,  1726. 

(^Martens:  Causes  Celebres,  I.,  178.) 

Right  of  asylum  in  tlie  Britisli  legation  in  Madrid  denied  by  the  government  of 
Spain. 

Baron  Ripperda  had  been  a  colonel  in  the  service  of  the  States- 
General  of  the  United  Provinces,  and  had  been  sent  by  them  as 
minister  plenipotentiary  to  the  court  of  Madrid.  After  two  years 
of  lesidence  at  this  court,  he  had  so  captivated  the  mind  of  Philip 
v.,  tliat  that  monarch  took  him  into  his  service,  made  him  minister 
of  finance  and  of  foreign  affairs,  and  conferred  upon  him  the  title 
of  Duke.  Accused  by  the  Imperial  Ambassador  at  Madrid  of  secretly 
favoring  the  interests  of  Holland  and  England,  he  was  finally  deprived 
of  his  offices,  though  granted  a  pension  by  the  King.  Fearing,  as 
he  said,  the  enmity  of  the  populace,  he  took  refuge  in  the  hotel  of 
the  English  AmV)assador,  Lord  Stanhope.  Tlie  Spanish  government 
would  seem  at  first  to  have  acquiesced  in  this  arrangement,  but  learn- 
ing that  the  Duke  had  important  state  pa[)ers  in  his  possession,  it 
demanded  his  delivery.  Not  meeting  with  a  compliance  to  this  de- 
mand, the  question  was  referred  to  the  Council  of  Castile,  whether, 
without  violating  the  law  of  nations,  the  Duke  of  Ripperda  could  be 
forcibly  taken  from  the  house  of  the  English  Ambassador.  The 
Council  replied  in  the  affirmative  :  "  To  act  otherwise  would  be  to 
employ  a  system  which  had  been  adopted  to  facilitate  the  inter- 
course of  sovereigns,  for  the  destruction  and  ruin  of  their  authority. 
To  extend  the  privileges  accorded  to  the  hotels  of  ambassadors  in 
favor  of  merely  ordinary  offenses  to  persons  intrusted  with  the 
finances,  the  powers,  and  the  secrets  of  a  state,  when  they  have  be- 
trayed the  duties  of  their  office,  would  be  to  introduce  into  the  world 
a  principle  most  injurious  to  all  nations.  If  this  maxim  were  to 
become  the  rule,  sovereigns  would  be  obliged  to  see  maintained  at 
their  own  courts  those  persons  most  actively  engaged  in  machina- 
tions for  their  ruin." 

Lord  Stanhope's  house  had  already  been  under  strict  surveillance  ; 
and,  on  the  receipt  of  the  opinion  of  the  council,  the  Spanish  govern- 


140  TERRITORIAL   JURISDICTION.  [PART  I. 

ment,  without  further  notice  to  tlie  ambassador,  forced  an  entrance 
and  arrested  the  Duke  of  Kipperda.  Tlie  Englisli  g-overnment 
protested  vigorously,  and  particularly  as  to  the  manner  of  the  pro- 
ceedings ;  and  the  incident  aggravating  the  already  strained  relations 
between  the  two  countries,  finally  resulted  in  war  the  next  year.^ 


rXITED  STATES  v.  JEFFERS. 

U.  S.  Circuit  Court  for  Dist.    of  Washixgtox,  1833, 

(4  Crunch,   C.  C.  Rep.,  704.) 

A  slave  who  liaJ  escaped  from  his  master,  ha;l  taken  service  in  the  house  of  the 
Secretarj'  of  the  British  Legation  in  Washington. 

An  otficer  of  the  District  of  Columbia,  who  removed  the  slave  and  restored  him 
to  his  master,  was,  by  order  of  the  Court,  dismissed  from  office. 

Francis  S.  Key,  Attorney  of  the  United  States  for  the  District  of 
Columbia,  having  laid  before  the  court  a  letter  to  him  from  the  Sec- 
retary of  State,  wherein  it  appeared  that  a  constable,  Madison  Jeffers, 
had  removed  from  the  house  of  Mr.  Bankhead,  the  British  Secretary  of 
Legation,  a  colored  lad  employed  for  hire  in  his  family  in  order  to 
restore  the  said  lad  to  his  master ;  it  was,  on  the  motion  of  said 
attorney  of  the  United  States,  ordered,  that  the  said  Madison  Jeffei's 
be  removed  from  the  office  of  constable  of  the  County  of  Washing- 
ton, unless  he  show  cause  to  the  contrary  on  the  thirty-flrst  day  of 
]\Iay  instant,  provided,  etc.     "  By  order  of  the  court.  May  oUth,  1836." 

Tlie  rule  having  been  duly  served,  the  said  Madison  Jeffers  appeared 
on  the  31st  of  ^lay  and,  by  way  of  showing  cause,  filed  his  atTidavit 
admitting  the  facts,  but   alleging   his  ignorance  of  the  diplomatic 

1  Vattel,  writing  thirty  years  later,  says  of  the  opinion  of  the  Council  of  Castile. 
"On  ne  pent  rien  dire  de  plus  vrai  et  de  plus  judicieux  sur  cette  matiere." 

Merlin  said,  "  On  voit  par  ces  details,  que  le  droit  d'asyle  est,  a  Tegard  des 
hotels  des  anibassadeurs,  une  source  perpctuelle  de  dissensions  et  de  querelles. 
Le  bien  des  nations  denianderait,  sans  donte,  qu'on  TaboKt  tout-a-fait  :  et  cela 
parait  d'autant  plus  raisonable,  qu'il  ya  plusiem-s  etats  danslesquels  il  n'est  point 
connu." 

In  1747,  a  Swedish  merchant  of  the  name  of  Springer,  accused  of  higli-treason, 
took  refuge  in  the  hotel  of  the  English  Ambassador,  Colonel  Ouideckens,  at  Stock- 
holm. The  ambassador  refused  to  surrender  him  ;  the  Swedish  government  sur- 
rounded his  house  with  troops,  searched  everybody  who  entered  it,  and  caused 
the  carriage  of  the  ambassador,  when  he  left  the  hotel,  to  be  followed  by  a  guard, 
(^iuideckens  surrendered  Sprinirer  under  a  protest  as  to  the  violence  done  to  his  am- 
bassadorial privilege.  England  demanded  reparation,  and  Sweden  steadily  refused 
ic  give  it,  and  the  ambassadors  from  the  two  courts  were  mutually  withdrawn. 


CHAP.  II.]  UNITED    STATES    W.  JEFFERS.  141 

privileges,  and  his  belief  that  he  was  executing  his  duty  lawl'ully, 
in  arresting-  a  fugitive  slave,  and  disclaiming  all  intentional  disre- 
spect to  Mr.  Bankhead. 

His  counsel,  Mr.  W.  L.  Brent,  contended  that  Jeffers,  as  the  agent 
of  the  owner  of  the  slave,  had  a  right  to  take  hiui  anywhere ;  and 
also  that,  as  a  constable,  he  had  a  right  to  take  up  a  runaway,  that 
the  diplomatic  privilege  extends  only  to  foreign  ministers  and  upon 
certains  terms  ;  and  not  to  servants  of  a  secretary  of  legation. 

That  the  servant  had  not  been  registered  according  to  the  Act  of 
Congress  of  30th  of  April,  1790,  §  26  (Stat,  at  Large,  112),  and  there- 
fore Jeffers  had  a  right  to  arrest  him ;  because  the  act  of  Congress 
for  punishing  the  violation  of  privilege  does  not  extend  to  those  who 
may  arrest  a  servant  not  registered.  By  not  registering  his  servant, 
the  minister  has  waived  his  privilege,  Seacourt  v.  Bowlney,  1  Wils.,  20. 

The  court  stopped  Mr.  Key  in  reply.  Thurston,  J.,  said  he  wished 
no  further  time  or  argument.  He  was  of  opinion  that  Jeffers  should 
be  dismissed  from  office. 

MoESELL,  J.,  concurred. 

Craxch,  C.  J.,  would  have  taken  time  to  consider ;  but  said  that 
his  present  opinion  coincided  with  that  of  the  court. 

Vrhereupon  the  court  passed  the  following  order : 

"  Madison  Jefters,  upon  whom  a  rule  was  laid  on  the  30th  of  May 
last,  to  show  cause  why  he  should  not  be  removed  from  the  office  of 
constable  for  the  county  of  Washington,  upon  the  grounds  tiierein 
stated,  appeared  and  filed  his  affidavit,  and  the  same  was  read  and 
heard,  and  he  was  further  heard  by  his  counsel  whereupon 

"  It  is  considered  by  the  court,  that  the  said  Madison  Jeffers  was 
guilty  of  a  violation  of  the  privileges  of  His  Britannic  Majesty's 
Envoy  Extraordinary  and  Minister  Plenipotentiary,  as  stated, 
in  his  letter  to  the  Secretary  of  State  referred  to  in  the  said 
rule  ;  and  the  said  Madison  Jeffers,  having  shown  no  sufficient 
cause  to  the  contrary,  it  is  thereupon  considered  by  the  Court, 
this  7th  day  of  June,  1836,  that  the  said  ]Madison  Jeffers  be, 
and  he  is  hereby,  removed  from  his  said  office  of  constable  for  the 
county  aforesaid." 


142  TEItrJTOELVL   JUEISDICTION.  [PART  T. 


OPIXION  OF  Mil.  FISH,  SECRETARY  OF  STATE. 
Letter  TO  Mk.Prestox,  Dec.  11,  1875. 

{U.  S.   Foreign  lidnl ionf<.  ISl'i.  p.. '^,A'^,.) 

A  criticism  of  tlie  practice  of  granting  asylum  to  political  refugees,  bj"  foreign 
legations,  in  the  Spanish  American  States. 

"The  right  to  grant  asj-him  to  fugitives  is  one  of  the  still  open 
questions  of  pul)lic  law.  The  practice,  however,  has  been  to  tolerate 
the  exercise  of  that  right,  not  only  in  American  countries  of  Spanish 
origin,  but  in  Spain  itself,  as  well  as  in  ITayti.  This  practice,  how- 
ever, has  never  addressed  itself  to  the  full  favor  of  this  Government. 
In  withholding  approval  of  it,  we  have  been  actuated  by  respect  for 
consistency. 

"  It  is  not  probable  that  the  practice  would  ever  be  attempted  in 
this  country,  or,  if  attempted,  could  be  tolerated,  and  the  discoun- 
tenance which  the  United  States  extends  to  the  practice  is  upon  the 
principle  of  doing  to  others  as  we  would  they  should  do  unto  us,  so 
that  when  we  acknowledge  the  sovereignty  of  a  foreign  state  bj'-  con- 
cluding treaties  with  and  by  accrediting  diplomatic  officers  to  its 
Government,  we  impliedly,  at  least,  acknowledge  it  as  a  political 
equal,  and  we  claim  to  extend  to  all  the  political  prerogatives  and 
immunities  which  we  may  claim  for  ourselves. 

"  We  sincerely  desire  that  it  may  be  universally  recognized  that 
foreign  legations  shall  nowhere  be  made  a  harbor  for  persons  either 
charged  with  crimes  or  who  may  fear  that  such  a  charge  may  be 
made. 

"  Prominent  among  the  reasons  for  objection  on  our  part  to  giving 
asylum  in  a  legation,  especially  in  the  Governments  to  the  south  of 
us,  is  that  such  a  practice  obviousl\'  tends  to  the  encouragement  of 
offenses  for  which  asylum  may  be  desired. 

"There  is  cause  to  believe  that  the  instability  of  the  Governments 
in  countries  where  the  practice  has  been  tolerated  may  in  a  great 
degree  be  imputed  to  such  toleration.  For  this  reason,  if  for  none 
other,  the  Government  of  the  United  States,  which  is  one  of  law  and 
order  and  of  constitutional  observance,  desires  to  extend  no  encour- 
agement to  a  practice  which  it  believes  to  be  calculated  to  promote 
and  encourage  revolutionary  movements  and  ambitious  plottings. 

"  Instances,  too,  have  occurred  where  asylum  having  been  granted 


CHAP,  II.]    OPIXIOX   OF  MR.  FISH,  SECRETARY   OF   STATE.  143 

with  impunity,  has  been  grossly  abused  to  tlie  defeat  of  justice,  not 
only  against  [tolitical  offenders,  but  also  against  persons  charged 
with  infamous  crimes.  Such  abuses  are  plainly  incompatible  -with 
the  stability  and  the  welfare  of  (governments,  and  of  society  itself. 

"  Temptations  sufficient  to  lead  to  an  abuse  of  the  practice  cannot 
fail  to  abound  in  most  persons  who  may  exercise  it.  Such  tempta- 
tions are  incident  to  human  nature,  and  in  countries  where  political 
revolutions  are  of  frequent  occurrence  one  must  be  gifted  with  un- 
common self-denial  to  be  wholly  free  from  their  influences. 

"  It  is  believed,  however,  to  be  sound  policy  not  to  expose  a  min- 
ister in  a  foreign  country  to  the  embarrassments  attendant  upon  the 
practice.  Still,  this  Government  is  not,  by  itself,  and  independently 
of  all  others,  disposed  to  absolutely  prohibit  its  diplomatic  repre- 
sentatives abroad  from  granting  asylum  in  every  case  in  Miiich 
application  therefor  may  be  made. 

"  We  do  not,  however,  withhold  from  them  our  views  of  the  prac- 
tice, and  will  expect  that,  if  they  do  exercise  the  prerogative,  it  will 
be  done  under  their  own  responsibility  to  their  own  Goverinnent. 
We  would  prefer,  therefore,  not  formally  to  assent  to  the  proposi- 
tions contained  in  the  memorandum  above  referred  to  without  ascer- 
taining the  views  of  the  other  Governments  concerned  in  regard  to 
them, 

"  Some,  at  least,  of  those  propositions  appear  to  be  fair  enough  ; 
but  as  the  circumstances  of  cases  in  which  asylum  may  be  granted 
greatly  vary,  it  would,  in  the  opinion  of  the  undersigned,  be  prefer- 
able, until  an  understanding  and  an  approach  to  accord  of  views  as 
to  the  future  practice  in  this  regard  can  be  had  by  the  other  powers, 
that  every  such  case  should  be  treated  according  to  its  merits,  rather 
than  that  we  should  be  fettered  in  advance  by  rules  which  may  be 
fotuid  not  to  be  practically  applicable  or  useful."  ^ 

^  The  printed  personal  instructions  of  the  governinent  of  the  United  States  to 
its  diplomatic  agents  of  date  of  1885,  contains  the  following  clause  : — 

"  In  some  countries,  where  frequent  insurrections  occur  and  consequently  in- 
stability of  government  exists,  the  practice  of  exterritorial  asylum  has  become  so 
firmly  established,  that  it  is  often  invoked  by  unsuccessful  insurgents,  and  is  prac- 
tically recognized  by  the  local  government  to  the  extent  even  of  respecting  the 
premises  of  a  consulate  in  which  sucli  fugitives  may  take  refuge.  Tliis  Govern- 
ment does  not  sanction  the  usage,  and  enjoins  upon  its  representatives  in  such 
countries  the  avoidance  of  all  pretexts  for  its  exercise.  While  indisposed  to  direct 
its  agents  to  deny  temporary  shelter  to  any  person  whose  life  may  be  threatened 
by  mob  violence,  it  deems  it  proper  to  instruct  its  representatives  that  it  will  not 
countenance  them  in  any  attempt  to  knowingly  harbor  offenders  against  the  laws 
from  the  pursuit  of  the  legitimate  agents  of  justice." 


144  TEEEITOEIAL   JUEISDICTIOX.  [PAET  I. 


(h)    On  Board  Ships  of  War. 
CASE   OF  JOHN   BROWN. 

Opinion  of  Siij  William.  Scott,  IS'lO. 
{IIalleck\'<  International  Laic,  I.,  1S5.) 

In  the  opinion  of  Sir  William  Scott,  the  right  of  asylum  as  regards  political 
refugees  does  not  properly  belong  to  ships  of  war. 

In  182t>,  John  Brown,  a  British  subject,  commanded  a  vessel  en- 
gaged in  the  revolt  against  the  Spanish  Colonies.  He  was  taken 
prisoner  by  the  Spaniards,  but  escaped  from  prison,  and  took  refuge 
on  board  H.  M.  S.  "  Tyne,"  lying  in  the  port  of  Lima.  Sir  William 
Scott,  being  requested  by  the  Admiralty,  gave  his  opinion  on  the 
question,  as  follows  : — "  Sir, — I  have  to  acknowledge  the  receipt  of 
your  letter  dated  the  25th  ult.,  enclosing  copies  of  a  letter,  and 
its  enclosures  from  Captain  Falcon,  of  H.  M.  S.  '  Tyne,'  and  of 
the  case  and  opinion  of  the  King's  Advocate,  relative  to  3Ir. 
John  Brown,  a  native  of  Ireland,  who,  being  a  prisoner,  in  the 
hands  of  the  Spaniards,  effected  his  escape  and  came  on  board  the 
'Tyne'  at  Callao,  and  has  since  arrived  on  board  the  same 
within  the  realm  of  England  (having  claimed  the  protection  of 
the  flag),  and  accpiainting  me  that  their  Lordships  conceiving 
that  they  had  no  authority  to  detain  him,  and  being  supported  in 
that  opinion  by  the  concurrence  of  the  King's  Advocate,  had 
allowed  him  to  depart  without  restraint.  L'pon  this  statement  I 
have  no  observation  to  make,  not  being  desired  by  their  Lordships 
to  make  any ;  but  if  my  opinion  had  been  required,  it  would  have 
coincided  with  what  has  been  advised  and  done.  A  more  extensive 
and  important  question  is  proposed  to  me,  viz. :  '  Whether  any 
British  subject  coming  on  board  any  of  H.  M.'s  ships  of  war,  in  a 
foreign  port  and  from  the  judicature  of  the  State  within  whose  terri- 
tory such  port  may  be  situated,  is  entitled  to  the  protection  of  the 
British  flag,  and  to  be  deemed  as  within  the  Kingdom  of  Great 
Britain  and  Ireland  ? '  L'pon  this  question  proposed  generally  I 
feel  no  hesitation  in  declaring  that  I  know  of  no  such  right  of  pro- 
tection belonging  to  the  British  flag,  and  that  I  tliink  such  a  pre- 
tension is  unfounded  in  point  of  principle,  is  injurious  to  the  rights 
of  other  countries,  and  is  inconsistent  with  those  of  our  own.     The 


CHAP.  II.]  CASE   OF    JOHN    15UOWN.  145 

rights  of  territories  are  local  and  are  fixed  by  known  and  determined 
limits.  Sliips  are  mere  movables  and  are  treated  as  sneh  in  the 
general  purchase  of  nations.  It  is  true  that  armed  neuti'alities  have 
attempted  to  give  them  a  territorial  cliaractei',  but  the  attempt  when 
made  has  been  always  most  perseveringly,  and  at  all  hazards,  re- 
sisted and  defeated  by  the  arms  of  our  country,  as  inconsistent 
with  the  rights  of  hostility  and  capture.  No  such  character  is 
allowed  to  protect  ships  of  war,  when  offending  against  the  laws  of 
neutrality  upon  the  high  seas,  where  no  local  authority  wliatever 
exists ;  still  less  can  it  be  claimed  where  there  is  a  visible  and 
acknowledged  authority,  belonging  to  an  independent  State  in  amity 
with  the  nation  of  which  the  ships  of  war  l)elong.  Such  a  claim  can 
lead  to  nothing  but  to  the  confusion  and  hostility  which  wait  upon 
conflicting  rights.  The  common  convenience  of  nations  has  for 
certain  reasons,  and  to  a  certain  extent,  established  in  favor  of  for- 
eign ships  of  war,  that  they  themselves  shall  not  be  liable  to  the 
civil  process  of  the  country  in  whose  ports  they  are  lying,  though 
even  the  immunity  has  been  occasionally  questioned.  J^ut  that 
individuals,  merely  belonging  to  the  same  country  with  the  ships  of 
war,  are  exempt  from  the  civil  and  criminal  process  of  the  country 
in  its  ordinarj^  administration  of  justice  by  getting  on  board  such 
ship,  and  claiming  what  is  called  the  protection  of  the  flag,  is  a  pre- 
tension which,  however  heard  of  in  practice  occasionally,  has  no 
existence  whatever  in  principle.  If  the  British  flag  converts  a 
man-of-war  into  a  British  territory,  the  flag  of  other  nations  must 
be  allowed  to  possess  the  same  property  in  their  marine ;  for  there 
is  no  principle  whatever  that  can  be  appropriated  exclusively  to  the 
British  flag. 

"It  therefore  must  be  allowed  reciprocally  that  a  Spaniard  getting 
on  board  a  Spanish  ship  of  war  lying  in  Portsmouth  harbor  shall 
be  protected  from  British  justice.  I  believe  the  administration  of 
that  justice  would  return  a  very  speedy  and  decisive  negative  tO' 
any  such  pretension  on  behalf  of  Spaniards  charged  with  being 
amenable  to  British  law.    . 

"  But  the  inconvenient  effects  of  considering  such  a  ship  a  Spanish 
territory  would  go  much  further — to  the  extent  of  protecting  a 
British  criminal  who  found  his  wny  into  her.  For  no  process  of 
British  justice  can  be  executed  on  a  British  subject  in  a  Foreign 
territory.  When  I  give  this  as  my  decided  persuasion  upon  tliis 
subject  generally,  I  do  not  mean  to  say  that  in  the  infinite  possi- 
l)ility  of  events  cases  may  not  arise  in  which  such  a  protection 
might  be  indulged. 

"  But  such  cases  are  justified  only  by  their  own  peculiar  and  ex- 
10 


146  TERRITORIAL   JURISDICTION.  [PART  I. 

traordinary  circumstances,  which  extend  no  further  than  to  those 
immediate  cases  themselves,  and  furnish  no  rule  of  general  practice 
in  such  as  are  ordinary.  How  far  the  case  of  3Ir.  Brown  comes 
within  such  a  description  I  am  not  enabled  to  state  confidently  by 
any  exact  knowledge  of  the  facts,  and  particularly  of  the  nature 
and  validity  of  that  authority  under  Avhich  the  acts  charged  upon 
him  by  the  Spaniards  are  said  to  have  been  committed.  It  would 
be  improper  in  me  to  define  what  the  British  Government  had 
not  thought  proper  to  define.  Holding  the  opinion  that  before  any 
Act  of  Parliament  or  proclamation  issued,  it  was  unlawful  for  a 
British  subject  to  accept  a  hostile  commission  from  any  persons 
either  in  war  or  rebellion  against  a  State  in  amity  with  the  Crown 
of  Great  Britain,  I  am  led  to  think  that  the  Spaniards  would  not 
have  been  chargeable  with  illegal  violence  if  they  had  thought 
proper  to  employ  force  in  taking  this  person  out  of  the  vessel 
(British),  and  I  add  that  it  was  certainly  very  undesirable  to  furnish 
occasions  for  the  lawful  use  of  force  in  the  intercourse  of  friendly 
nations.  Taking  the  authoritj^  under  which  Brown  acted  to  be 
clearly  invalid  (which  I  do  not  mean  to  assert),  I  think  it  might 
possibly  apj)ear  that  Captain  Falcon's  conduct  was  more  to  be 
commended  for  its  humanit}-  and  spirit  than  for  its  strict  legality. 
—William  Scott,  Grafton  Street,  28th  Xovember,  1820."  ^ 

1  On  the  receipt  of  this  oi)inion  a  copy  thereof  was  forwarded  to  the  Foreign  Office, 
and  Lord  Castlereagh,  in  a  letter  dated  the  20th  of  December,  1820,  addressed  to  the 
British  minister  at  tlie  Court  of  Spain,  tlius  expressed  himself  : — 

"  Your  Excellency  will  find  it  easy  from  these  papers,  to  give  such  an  explana- 
tion of  the  circumstances  which  attended  the  liberation  in  England  of  this  indi- 
vidual, as  will  be  satisfactory  to  the  Spanish  minister.  You  will  at  the  same  time, 
on  the  part  of  your  Court,  disavow  Captain  Falcon's  conduct  in  rescuing  Brown  on 
board  his  ship  within  a  Spanish  port,  and  not  delivering  him  up,  upon  the  requisi- 
tion of  the  local  authorities.  The  officer,  no  doubt,  acted  upon  a  good  motive,  but 
in  assuming  that  the  British  flag  could  protect  him  against  the  legal  process  of  the 
territorial  jurisdiction  within  which  the  parties  then  were,  was  to  maintain  a  prin- 
ciple, which  the  British  Government  desires  distinctly  to  disclaim  as  not  consistent 
with  their  uniform  practice,  or  with  the  Law  o.f  Xations."  (Report  of  Royal 
Commission  on  Fugitive  Slaves,  p.  LXXVII). 

On  the  other  hand,  a  directly  opposite  view  was  expressed  by  Lord  Palmerston, 
in  1849.  Mr.  Addiugton,  writing  to  the  Secretary  of  the  Admiralty,  August  4th, 
said  : — 

"Viscount  Palmerston  directs  me  to  request  that  you  will  acquaint  the  Board  of 
Admiralty  that  his  Lordship  is  of  the  opinion  that  it  would  not  be  right  to  receive 
and  harbor  on  board  a  British  ship  of  war  any  person  flying  from  justice  on  a 
criminal  charge,  or  who  was  escaping  from  the  sentence  of  a  cotirt  of  law.  But  a 
British  man-of-war  has  always  and  everywhere  been  considered  a  safe  place  of 
refuge  for  persons  of  whatever  country  or  party  who  had  sought  shelter  under  the 
British  flag  from  persecution  on  account  of  their  political  conduct  or  opinions  : 


CliAr.  11.]  SOTELO'S   CASE.  147 


(c)  On  Board  Merchant  Ships. 

SOTELO'S  CASE,  1840. 

(Cnli-o:  Droit  International,  4th  Ed.,  I,  .509.) 

Tlie  right  of  granting  asylum  to  political  refugees  does  not  belong  to  merchant 
vessels,  in  the  ports  of  such  refugees'  coimtry. 

"En  1S40  le  paqiiebot  a  vapeur  fran9ais  V Ocean,  qui  faisait  des 
voyages  reg'ulier.s  entre  Marseille,  la  cote  d'Espagne  et  Gibraltar  reyiit 
a  son  bord,  au  niouillage  de  Grao  (Valence),  M.  Sotelo,  ex-niinistre 
espagnol,  poursuivi  pour  cause  politique.  Ayant  remis  en  mer  sans 
qu'on  se  fut  inimediatement  aperyu  du  nombre  et  de  la  personnalite 
des  passagers  qu'il  avait  enibarques,  le  navire  se  rendit  a  Alicante ; 
niais  la,  au  moment  meme  de  la  visite  de  douane  et  de  police,  31. 
Sotelo  fut  reconnu,  saisi,  emmene  a  terre,  puis  emprisonne.     Le 

anil  this  protection  has  been  equally  offered,  whether  the  refugee  was  escaping 
from  the  arbitrary  acts  of  a  monarchical  government,  or  from  the  lawless  violence 
of  a  revolutionary  committee.  *  *  * 

"  Although  the  commander  of  a  ship  of  war  should  not  seek  out  or  invite  polit- 
ical refugees,  yet  he  ought  not  to  turn  away  or  give  up  any  who  may  reach  his 
ship  and  have  obtained  admittance  on  board.  Such  officer  must  of  course  take 
care  that  such  refugees  shall  not  carry  on  from  on  board  his  ship  any  political 
correspondence  with  their  partisans  on  shore,  and  he  ought  to  avail  himself  of  the 
earliest  opportunity  to  send  them  to  some  place  of  safety  elsewhere."  (Rep.  of 
Royal  Comm.  on  Fug.  Slaves,  p.  1.5.5). 

For  a  full  discussion  of  the  question  of  the  extemtoriality  of  ships  of  war,  see 
the  separate  reports  of  Lord  Chief  Justice  Cockburn,  and  Mr.  Rothery,  in  the 
"  Report  of  the  Royal  Commission  on  Fugitive  Slaves,"  1876.  Mr.  Rotheiy  takes 
strong  ground  against  the  right  of  asylum  on  such  ships. 

Sir  James  Fitzjames  Stephen,  another  member  of  the  commission,  takes  similar 
ground.     (Stephen's  History  of  the  Criminal  Law,  II.,  .57). 

As  to  American  practice,  Attorney-General  Bradford  held,  in  17!)4,  that  a  "  writ 
of  habeas  corpus  may  be  awarded  to  bring  up  an  American  subject  unlawfully 
detained  on  board  a  foreign  ship  of  war,  the  commander  being  amenable  to  the 
usual  jurisdiction  of  the  state  where  he  happens  to  be,  and  not  entitled  to  claim 
the  extraterritoriality  which  is  annexed  to  a  foreign  minister  and  his  domicil."' 
(Whartons  Digest,  L,  1.38.) 

But  in  185.5,  Attorney-General  Gushing— a  high  authority— held,  that  a  "  prisoner 
of  war  on  board  a  foreign  ship  of  war,  or  of  her  prize,  cannot  be  released  hj  habeas 
corpu.'i  Issuing  from  courts  of  the  United  States  or  of  a  particular  State.'"  And 
again,  in  18-56,  "  ships  of  war  enjoy  the  full  rights  of  extraterritoriality  in  foreign 
ports  and  territorial  waters."  (Wharton's  Digest,  I.,  138.)  It  would  seem  to 
follow,  therefore,  that  right  of  asylum  could  be  granted  on  American  ships  of  war. 
In  South  American  ports  it  has  frequently  been  done. 


148  TEKRITOKIAL   JURISDICTIOX,  [CHAP  11. 

capitaine  de  V  Ocean  protesta  centre  ce  qu"il  qualifiait  de  violation  de 
pavilion,  et  reclama  vaineraent  la  niise  en  liberte  de  son  passager, 
en  invoquant  ji  la  fois  le  droit  d'asile  et  le  principe  d'exterritorialite, 
"  Ses  communications  diplouiatiques  echangees  au  sujet  de  cette 
affaire  entre  le  gouvernement  de  France  et  celui  d'Espagne  etablirent 
•de  la  maniere  la  plus  peremptoire  que  la  conduite  des  autorites 
d" Alicante  etait  a  Tabri  de  tout  reproclie  ;  que  nulle  atteinte  n'avait 
ete  portce  au  respect  du  pavilion,  puis(pril  s'agissait  d'un  navire 
marcliand  ordinaire  et  d'une  mesure  de  haute  i)olice  executee  dans 
I'interieur  du  port;  que  31.  Sotelo,  emljarque  subrepticement  a 
Valence,  port  espagnol,  avait  pu  regulierement  etre  saisi  et  arrete  a 
})Ovd  de  V Ocean  dans  un  autre  port  du  meme  pays;  enfin  que  la 
c-irconstance  d'avoir  navigue  en  pleine  mer  pendant  un  certain  temps, 
avant  d'atteindre  Alicante  ne  pouvait  altorer  la  nature  du  fait 
delictueux  accompli  au  point  de  depart  et  constate  au  point  d'arrivee 
sous  I'empire  des  memes  lois  de  la  meme  legislation  territoriale." 


OPIXIOX  OF  LORD  ABERDEEX,  1S44. 

(Rep.  of  lioyal  Comin.  on  Fu'/ltive  Slaves,  VA.) 
Merchant  vessels  possess   no    right    of   asyhiu]. 

Viscount  Canning  writes  to  the  Secretary  of  the  Admiralty,  March 
20,  1844,  as  follows:— 

"  Sir, — I  have  laid  before  the  Earl  of  Aberdeen  Sir  J.  Barrow's 
letter  of  the  9th  instant,  from  which  it  appears  that  the  Lords  Com- 
missioners of  the  jVdmiralty  wish  to  know  what  line  of  conduct 
should  be  pursued  by  the  commanders  of  the  hired  vessels  which 
convey  the  mails  between  this  country  and  the  Peninsula,  if  it  should 
happen  that  the  authorities  of  Vigo  should  attempt  to  remove  from 
any  of  these  vessels  a  Spanish  subject  who  may  have  embarked  at 
Lisbon,  being  provided  with  a  Portuguese  passport,  countersigned 
by  the  British,  French,  and  Belgian  Legations  at  Lisbon. 

"  In  answer  to  the  above  inquiry,  I  am  directed  by  Lord  .Vberdeen 
to  acquaint  you,  for  the  information  of  the  Lords  Commissioners  of 
the  Admiralty,  that  there  is  no  stipulation  in  the  existing  treaties 
between  this  country  and  Spain  which  can  be  deemed  sufficient  to 
debar  the  Spanish  Government  from  exercising  the  right  which,  in 
his  Lordship's  opinion,  appertains  to  that. government  of  claiming 
its  own  suljjects  Avhen  they  may  be  found  in  a  Spanish  port  as  pas- 
sengers on  board  vessels  hired  to  convey  the  mails  between  this 
countrj''  and  the  Peninsula." 


CHAP.  II.]  CASE    OF    GOMEZ.  149 


CASE  OF  GOMEZ. 

Bayakd,  Sicc.  OF  St.,  to  IIaix,  Maucii  12,  1884. 

(U.  S.  Forcifjn  Relatione,  1885,  ^j.  82). 

Merchant  vessels  possess  no  right  of  asyhnii. 

"Sir, — T  have  to  acknowledge  the  receipt  of  your  No.  316,  of  the 
loth  ultimo,  ill  which  you  enclose  copies  of  the  correspondence 
between  the  legation  at  Gnateniala  and  3Ir.  Leavitt,  the  United 
Stat(?s  consul  at  Managua,  respecting  the  case  of  Jose  Dolores 
Gomez,  and  request  more  definite  instructions  for  such  cases. 

"It  appears  that  Mr.  Gomez,  who  is  said  to  be  a  political  fugitive 
from  Nicaragua,  voluntarily  took  passage  at  San  Jose  de  Guatemala 
for  Punta  Arenas,  Costa  Rica,  on  board  the  Pacific  Mail  steamship 
Honduras  with  the  knowledge  that  the  vessel  would  enter  en  route 
the  port  of  San  Juan  del  Sur,  Nicaragua. 

"  The  government  of  Nicaragua  upon  learning  of  this  fact  ordered 
the  commandant  of  the  port  of  San  Juan  del  Sur,  to  arrest  Gomez 
upon  the  arrival  of  the  Honduras  at  that  port. 

"The  minister  for  foreign  affairs  of  Nicaragua  informed  Mr. 
Leavitt,  United  States  consul  at  ]Vlanagua,  of  the  action  of  the  gov- 
ernment by  a  telegram,  as  follows : 

"'Government  has  ordered  the  commander  of  port  San  Juan  del 
Sur  to  arrest  Jos6  Dolores  Gomez,  a  fugitive  prisoner,  mIio  is  on 
board  of  the  steamer  Honduras,  now  en  roicte  to  that  port.  I  sup- 
pose the  captain  wall  not  interfere  with  the  action  of  the  com- 
mander, but  to  avoid  whatever  difficulties  likely  to  arise  I  suggest 
you  to  send  a  telegraphic  message  to  the  captain  of  the  Honduras, 
at  San  Juan  del  Sur,  stating  that  the  order  has  been  issued  by  the 
government  and  recommending  him  to  support  the  commander  as 
there  is  no  ground  on  the  part  of  the  captain  to  hinder  the  execution 
of  the  government  order.' 

"It  appears  that,  before  Mr.  Leavitt  had  an  opportunity  to  act 
upon  this  request,  you  telegraphed  him  as  folloAvs  : 

"  'Reported  here  arrest  of  a  transit  passenger  bound  to  Panama  on 
board  steamer  Honduras  at  San  Juan  del  Sur.  Say  respectfully  to 
Nicaragua!!  minister  of  foreign  affairs  that  our  government  never 
has  consented  and  never  will  consent  to  the  arrest  and  removal 
from  an  American  vessel  in  a  foreign  port,  of  any  passenger  in  tran- 
sit, much  less  if  offense  is  political.' 


150  TEKKITORIAL   JURISDICTION.  [PAKT  I. 

"  It  appears  that  Mr.  Leavitt  declined  to  comply  with  the  request 
of  the  minister  of  foreign  ati'airs,  and  followed  your  instructions  by 
submitting  a  copy  in  writing  to  the  minister. 

"  P^'rom  the  brief  outline  given  by  the  consul  of  the  subsequent 
proceedings,  it  appears  that  the  government  authorities  at  San 
Juan  del  Sur,  upon  the  arrival  of  the  Honduras  at  that  port,  re- 
quested the  captain  to  deliver  up  jNIr.  Gomez.  This  he  declmed  to 
do,  and  set  sail  without  proper  clearance  papers. 

"  The  consul  reports  that  for  these  offenses  the  captain  has  been 
tried  by  the  Nicaraguan  goveriunent  and  found  guilty,  and  although 
he  has  not  been  able  to  learn  the  nature  of  the  sentence,  he  is  con- 
vinced, from  the  present  attitude  of  the  government,  that  the  sen- 
tence Avill  be  executed  in  case  of  the  return  of  the  captain  or  the 
vessel  within  the  jurisdiction  of  the  Government  of  Nicaragua. 

"  As  the  nature  and  character  of  the  proceedings  against  the  cap- 
tain of  the  Honduras  are  not  known  to  this  Department,  a  full  and 
detailed  report  should  be  made  as  early  as  practicable.  It  is  clear 
that  Mr.  Gomez  voluntarily  entered  the  jurisdiction  of  a  country 
whose  laws  he  had  violated.  *   *   * 

"  It  may  be  safely  affirmed  that  when  a  merchant  vessel  of  one 
country  visits  the  ports  of  another  for  the  purposes  of  trade,  it  owes 
temporary  allegiance  and  is  amenable  to  the  jurisdiction  of  that 
country,  and  is  subject  to  the  laws  which  govern  the  port  it  visits 
so  long  as  it  remains,  unless  it  is  otherwise  provided  by  treaty. 

"  Any  exemption  or  immunity  from  local  jurisdiction  must  be  de- 
rived from  the  consent  of  that  country.  Xo  such  exemption  is 
made  in  the  treaty  of  connnerce  and  navigation  concluded  between 
this  country  and  Nicaragua  on  the  21st  day  of  June,  1807."  ^ 

'  In  the  similar  case  of  BaiTuiidia,  ISOO,  tlie  government  of  the  United  States 
set  up  a  different  rule.  Barrundia  was  a  political  refugee  from  Guatemala  who 
took  passage,  at  a  Mexican  port,  on  the  Pacific  Mail  Steamship  Acapulco 
(American)  for  Salvador.  The  steamer  was  to  call  on  the  way  at  several  ports  of 
(iuatemala;  and  on  learning  of  the  movements  of  Barrundia,  the  government  of 
Guatemala  proposed  to  arrest  him.  That  it  could  legally  do  so  was  the  opinion  of 
the  American  Minister,  Mizner,  and  the  American  Consul-General,  Hosmer,  and 
they  so  advised  the  captain  of  the  Acapulco,  and  the  authorities  of  Guatemala.  In 
the  attempt  to  arrest  Barrundia  on  board  the  steamship,  he  resisted  and  was  killed. 

For  his  part  in  the  affair,  Mr.  Mizner  was  severely  censured,  and  recalled  from 
his  post.  Commander  Kelter  of  the  U.  S.  ship  of  war,  Rftivjei;  who  was  present  in 
the  port  at  the  time,  was  also  sent  into  disgrace  for  not  interfering  to  prevent  the 
arrest. 

In  his  dispatch  to  Mr.  Mizner  of  Xovemher  18,  1S90,  Mr.  Blaine  reviews  the 
facts  and  the  law  of  the  case;  much  of  his  argument  has  no  bearing  on  the  case, 
and  many  of  his  citations  go  to  disprove  his  own  view  of  it.  It  is  hardly  too  much 
to  say  that  there  is  no  foundation  in   International  Law  for  the  position  of  the 


CHAP.  II.]  UNITED    STATES    V.  KAUSCHEU.  I'd 


Section  14. — Extuaditiox. 


UNITED  STATES  v.  RAUSCIIER. 

Supreme  Court  of  tiik  United  States,  1886. 
(119  United  State.s  Exports,  401.) 

There  is  no  rule  of  international  law  recjuirlng  States  to  deliver  up  fugitives  from 
justice  from  other  States. 

In  the  United  States,  extradition  is  exclusively  a  Federal  question. 

A  person  extradited  under  treaty  can  be  tried  for  that  offense  only  for  which  he 
was  extradited. 

Jiulg'inent. — Miller,  J. ; — 

"  This  case  comes  before  us  on  a  certificate  of  division  of  opinion 
between  the  judges  holding  tlie  Circuit  Court  of  tlie  United  States 
for  the  Soutliern  District  of  New  York  arising  after  verdict  of  guilty, 
and  before  judgment,  on  a  motion  in  arrest  of  judgment. 

"The  prisoner,  William  Rauscher,  Avas  indicted  by  a  grand  jury, 
for  that  on  the  9tli  day  of  October,  1884,  on  the  high  seas,  out  of  the 
jurisdiction  of  any  particular  state  of  the  United  States,  and  within 
the  admiralty  and  maritime  jurisdiction  thereof,  he,  the  said  William 
Rauscher,  being  then  and  there  second  mate  of  the  ship  J.  F.  Chap- 
man, unlawfully  made  an  assault  upon  Janssen,  one  of  the  crew  of 
the  vessel  of  which  he  was  an  officer,  and  unlawfully  inflicted  upon 
said  Janssen  ci-uel  and  unusual  punishment.  This  indictment  was 
found  under  §  5347  of  the  Revised  Statutes  of  the  United  States.  *  *  * 

"  The  prisoner  having  been  extradited  upon  a  charge  of  murder  on 
the  high  seas  of  one  Janssen,  under  §  53.39  Rev.  Stat.,  had  the  Circuit 
Court  of  the  Soutliern  District  of  New  York  jurisdiction  to  put  him 
to  trial  upon  an  indictment  under  §  5347  Rev.  Stat.,  charging  him  with 
cruel  and  unusual  punishment  of  the  same  man,  he  being  one  of  the 
crew  of  an  American  vessel  of  which  the  defendant  was  an  officer,  and 
such  punishment  consisting  of  the  identical  acts  proved  in  the  extra- 
dition proceedings  ? 

United  States  Government  in  this  affair.  The  only  possible  excuse  for  it  is  the 
assertion  that  the  Spanish  American  States  do  not  possess  all  the  rights  of  sover- 
eign states,  and  that  there  should  be  an  exceptional  rule  adopted  in  their  case,  in 
regard  to  asylum  on  merchant  ships,  as  there  is  in  the  case  of  legations. 

For  a  careful  study  of  the  right  of  asylum,  see  an  article  by  Professor  J.  B. 
Moore,  in  the  "Political  Science  Quarterly"  for  1892.  See  also,  1  "  Wharton's 
Digest  of  International  Law,"  §  104. 


152  TERItlTOPvIAL    JURISDICTION.  [tAKT  1. 

"  The  treat}^  with  Great  l]ritain,  under  which  the  defendant  was  siu-- 
rendered  b}'  tliat  government  to  ours  upon  a  cliarge  of  nutrder,  is  tliat 
of  August  9, 1842.  *  *  *  The  tenth  article  of  tlie  treaty  is  as  follows  ; 
'  It  is  agreed  that  the  United  States  and  her  Britannic  JNIajestj'^  shall, 
upon  mutual  requisitions  by  them,  or  their  muiisters,  officers,  or  au- 
thorities, respectively  made,  deliver  up  to  justice  all  persons  aa'Iio, 
being  charged  with  the  crime  of  murder,  or  assault  with  intent  to 
commit  nmrder,  or  piracy,  or  arson,  or  robbery,  or  forgery,  or  the 
utterance  of  forged  paper,  committed  within  the  jurisdiction  of  either, 
sliall  seek  an  asylum,  or  shall  be  found,  within  the  territories  of  the 
other:  provided  that  this  shall  only  be  done  upon  such  evidence  of 
criminality  as,  according  to  tlie  laws  of  the  place  where  the  fugitive 
or  person  so  charged  shall  be  found,  would  justifj^  his  apprehension 
and  commitment  for  trial,  if  the  crime  or  otfense  had  there  been  com- 
mitted ;  and  the  respective  judges  and  other  magistrates  of  the  two 
Governments  shall  have  power,  jurisdiction,  and  authority,  upon  com- 
l)laint  made  under  oath,  to  issue  a  warrant  for  the  apprehension  of 
the  fugitive  or  person  so  charged,  that  he  may  be  brought  before  such 
judges  or  other  magistrates,  respectively,  to  the  end  that  the  evidence 
of  criminality  may  be  heard  and  considered  ;  and  if,  on  such  hearing, 
the  evidence  be  deemed  sufficient  to  sustain  the  charge,  it  shall  be 
the  duty  of  the  examming  judge  or  magistrate  to  certify  the  same  to 
the  proper  executive  authority,  that  a  warrant  may  issue  for  the 
surrender  of  such  fugitive.' 

"  Xot  only  has  the  general  subject  of  the  extradition  of  persons, 
charged  with  crime  in  one  country,  who  have  fled  to  and  sought 
refuge  in  another,  been  matter  of  much  consideration  of  late  j-ears  by 
the  executive  departments  and  statesmen  of  the  governments  of  the 
civilized  portion  of  the  world,  by  various  publicists  and  writers  on 
international  law,  and  by  specialists  on  that  subject,  as  well  as  by  the 
courts  and  judicial  tribunals  of  different  countries,  but  the  precise 
questions  arising  under  this  treaty,  as  presented  by  the  certificate  of 
the  judges  in  this  case,  have  recently  been  very  much  discussed  in 
this  country,  and  in  Great  Britain. 

"  It  is  only  in  modern  times  that  the  nations  of  the  earth  have  im- 
posed upon  themselves  the  obligation  of  delivering  up  these  fugitives 
from  justice  to  the  states  where  their  crimes  were  committed,  for 
trial  and  punishment.  This  has  been  done  generally  by  treaties  made 
by  one  independent  government  with  another.  Prior  to  these  trea- 
ties, and  apart  from  them,  it  may  be  stated  as  the  general  result  of 
the  writers  upon  international  law,  that  there  was  no  well-defined 
obligation  on  one  country  to  deliver  up  such  fugitives  to  anotlier,  and 
though  such  delivery  was  often  made,  it  was  upon  the  principle  of 


niAP.  TI.]  UNITED    STATES   V.  RAUSCHER.  lo3 

comity,  and  within  the  discretion  of  the  government  whose  action 
was  invoked;  and  it  has  never  been  recognized  as  among  those  ol)li- 
gations  of  one  government  towards  another  wlii(;h  rest  U[)(jn  estab- 
lislied  principles  of  international  law. 

'•  Whelher  in  the  United  States,  in  the  absence  of  any  treaty  on 
the  subject  with  a  foreign  nation  from  whose  justice  a  fugitive  may 
be  found  in  one  of  the  states,  and  in  the  absence  of  any  act  of  Con- 
gress upon  the  subject,  a  state  can,  through  its  own  judiciary  or  execu- 
tive, surrender  him  for  trial  to  such  foreign  nation,  is  a  (question 
Avhich  has  been  under  consideration  by  the  courts  of  this  country 
without  any  very  conclusive  result.  *  *  * 

"There  can  be  little  doubt  of  the  soundness  of  the  opinion  of 
Chief-Justice  Taney,  that  the  power  exercised  by  the  governor  of 
Vermont  is  a  pai't  of  the  foreign  intercourse  of  this  country,  AAliich 
has  undoubtedly  been  conferred  upon  the  Federal  government ;  and 
that  it  is  clearly  included  in  the  treaty  making  power  and  the  cor- 
responding power  of  appointing  and  receiving  ambassadors  and  other 
public  ministers.  There  is  no  necessity  for  the  states  to  enter  upon 
the  relations  with  foreign  nations  which  are  necessarily  implied  in 
the  extradition  of  fugitives  from  justice  found  within  the  limits  of 
the  state,  as  there  is  none  why  they  should,  in  their  own  name,  make 
demand  upon  foreign  nations  for  the  surrender  of  such  fugitives. 

"  At  this  time  of  day,  and  after  the  repeated  examinations  which 
have  been  made  by  this  court  into  the  powers  of  the  Federal  govern- 
ment to  deal  with  all  such  international  questions  exchtsively,  it  can 
hardly  be  admitted  that,  even  in  the  al)sence  of  treaties  or  acts  of 
Congress  on  the  subject,  the  extradition  of  a  fugitive  from  justice 
can  become  the  subject  of  negotiation  between  a  state  of  this  Union 
and  a  foreign  government. 

"Fortunately,  this  question,  with  others  which  might  arise  in  the 
absence  of  treaties  or  acts  of  Congress  on  the  subject,  is  now  of 
very  little  importance,  since,  with  nearly  all  the  nations  of  the 
world  with  Avhom  our  relations  are  such  that  fugitives  from  justice 
may  be  found  within  their  dominions  or  within  ours,  we  have  trea- 
ties Mdiich  govern  the  rights  and  conduct  of  the  parties  in  such 
cases.  These  treaties  are  also  supplemented  by  acts  of  Congress, 
and  both  are  in  their  nature  exclusive. 

"The  case  we  have  under  consideration  arises  under  one  of  these 
treaties  made  between  the  United  States  and  Great  Britain,  the 
country  with  which,  on  account  of  our  intimate  relations,  the  cases 
requiring  extradition  are  likely  to  be  most  numerous.  This  treaty 
of  1842  is  supplemented  by  the  acts  of  Congress  of  August  12,  ls48, 
9  Stat.,  302,  and  March  3,  18G9, 15  Stat.,  337,  the  provisions  of  which 


154  TEREITORIAL   JURISDICTION.  [PART  I. 

iiro  embodied  in  §§  5270,  5272  and  5275  of  the  Ilevised  Statutes, 
under  Title  LXVI.,  Extradition.*  *  * 

"  Tlie  treaty  of  1842  being,  therefore,  the  supreme  law  of  the  land, 
whieli  the  courts  are  bound  to  take  judicial  notice  of  and  to  enforce 
in  any  appropriate  proceeding  the  rights  of  persons  growing  out  of 
that  treaty,  we  proceed  to  inquire,  in  the  first  place,  so  far  as  per- 
tinent to  the  question  certified  bj''  the  circuit  judges,  into  the  true 
construction  of  the  treaty.  We  have  already  seen  that,  according 
to  the  doctrine  of  publicists  and  writers  on  international  law,  the 
country  receiving  the  offender  against  its  laws  from  another  country 
had  no  right  to  proceed  against  him  for  any  other  offense  than  that 
ft)r  which  he  had  been  delivered  up.  This  is  a  principle  which  com- 
mends itself  as  an  appropriate  adjunct  to  the  discretionary  exercise 
of  the  po\\er  of  rendition  because  it  can  hardly  be  supposed  that 
a  government  which  was  under  no  treaty  obligation  nor  any  absolute 
obligation  of  public  duty  to  seize  a  person  who  had  found  an  asy- 
lum within  its  bosom  and  turn  him  over  to  another  country  for  trial, 
would  be  willing  to  do  this,  unless  a  case  was  made  of  some  spe- 
cific offense,  of  a  character  which  justified  the  government  in  depriv- 
ing the  party  of  his  asylum.  It  is  unreasonable  that  the  country  of 
the  asylum  should  be  expected  to  deliver  up  such  person  to  be  dealt 
with  by  the  demanding  government  without  any  limitation,  im})lied 
or  otherwise,  upon  its  prosecution  of  the  party.  In  exercising  its 
discretion,  it  might  be  very  willing  to  deliver  up  offenders  against 
such  laws  as  were  essential  to  the  protection  of  life,  liberty  and 
person,  while  it  would  not  be  willing  to  do  this  on  account  of  minor 
misdemeanors  or  of  a  certain  class  of  political  offenses  in  which  it 
would  have  no  interest  or  sympathy.  Accordingly,  it  has  been  the 
policy  of  all  governments  to  grant  an  asylum  to  persons  who  have 
fied  from  their  homes  on  account  of  political  disturbances  and  who 
might  be  there  amenable  to  laws  framed  with  regard  to  such  sub- 
jects, and  to  the  personal  allegiance  of  the  party.  In  many  of  the 
treaties  of  extradition  between  the  civilized  nations  of  the  world, 
there  is  an  express  exclusion  of  offenders  against  such  laws,  and  in 
none  of  them  is  this  class  of  offenses  mentioned  as  being  the  founda- 
tion of  extradition  proceedings.  Indeed,  the  enumeration  of  offenses 
in  most  of  these  treaties,  and  especially  in  the  treaty  nov/  under  con- 
sideration, is  so  specific,  and  marked  by  such  a  clear  line  in  regard 
to  the  magnitude  and  importance  of  those  offenses,  that  it  is  impos- 
sible to  give  any  other  interpretation  to  it  than  that  of  the  exclusion 
of  tlie  right  of  extradition  for  any  others, 

"  It  is,  therefore,  very  clear  that  this  treaty  did  not  intend  to  depart 
in  tills  respect  from  the  recognizetl  public  law  which  had  prevailed 


CHAP.  II.]  UNITED   STATES   V.  RAUSCHEK.  155 

in  the  absence  of  treaties,  and  that  it  was  not  intended  that  this 
treaty  should  be  used  for  any  other  purpose  than  to  secure  the  trial 
of  the  person  extradited  for  one  of  the  offenses  enumerated  in  the 
treaty.  This  is  not  only  api)arent  from  the  general  principle  that 
the  specific  enumeration  of  certain  matters  and  things  implies  the 
exclusion  of  all  others,  but  the  entire  face  of  the  treaty,  including 
the  processes  by  wliich  it  is  to  be  carried  into  effect,  confirms  this 
view  of  the  subject.  It  is  unreasonable  to  suppose  that  any  demand 
for  rendition  framed  upon  a  general  representation  to  the  govern- 
ment of  the  asylum  (if  we  may  use  such  an  expression)  tliat  the 
party  for  whom  the  demand  was  made  was  guilty  of  some  violation 
of  the  laws  of  the  country  which  demanded  him,  without  specifying 
any  paiticular  offense  with  which  he  was  charged,  and  even  without 
si)ecifying  an  offense  mentioned  in  the  treaty,  would  receive  any 
serious  attention  ;  and  yet  such  is  the  effect  of  the  construction  that 
the  party  is  properly  liable  to  trial  for  any  other  offense  than  that 
for  which  he  was  demanded,  and  wliich  is  described  in  the  treaty. 
There  would,  under  that  view  of  the  subject,  seem  to  be  no  need  of 
a  description  of  a  specific  offense  in  making  the  demand.  But,  so 
far  from  this  being  admissible  the  treaty  not  only  provides  that  the 
party  shall  be  charged  with  one  of  the  crimes  mentioned,  to  wit, 
nmrder,  assault  with  intent  to  commit  murder,  piracy,  arson,  rob- 
bery, forgery  or  the  utterance  of  forged  paper,  but  that  evidence 
sliall  be  produced  to  the  judge  or  magistrate  of  tlie  country  of  which 
such  demand  is  made,  of  the  commission  of  such  an  offense,  and 
that  this  evidence  shall  be  such  as  according  to  the  law  of  that 
country  would  justify  the  apprehension  and  commitment  for  trial  of 
the  person  so  charged.  If  the  proceedings  under  which  the  party  is 
arrested  in  a  country  where  he  is  peaceably  and  quietly  living,  and 
to  the  protection  of  whose  laws  he  is  entitled,  are  to  have  no  influ- 
ence in  limiting  the  prosecution  in  the  country  where  the  offense  is 
charged  to  have  been  committed,  there  is  very  little  use  for  this  par- 
ticularity in  charging  a  specific  offense,  requiring  that  offense  to  be 
one  mentioned  in  the  treaty,  as  well  as  sufficient  evidence  of  the 
party's  guilt  to  put  him  upon  trial  for  it.  Xor  can  it  be  said  that, 
in  the  exercise  of  such  a  delicate  power  under  a  treaty  so  well 
guarded  in  every  particular,  its  provisions  are  obligatory  alone  on 
the  State  which  makes  the  surrender  of  the  fugitive,  and  that  that 
fugitive  passes  into  the  hands  of  the  country  which  charges  him  with 
the  offense,  free  from  all  the  positive  requirements  and  just  impli- 
cations of  the  treaty  under  Avhich  the  transfer  of  his  person  takes 
place.  A  moment  before  he  is  under  the  protection  of  a  govern- 
ment which  has  afforded  him  an  asvlum  from  which  he  can  onlv  bj 


156  TERRITORIAL   jrRISDICTIOX.  [PART  I. 

taken  under  a  very  limited  form  of  procedure,  and  a  moment  after 
he  is  found  in  the  possession  of  another  sovereignty  by  virtue  of 
that  proceeding,  but  divested  of  all  the  rights  which  he  had  the 
moment  before,  and  of  all  the  rights  which  the  law  governing  that 
proceeding  was  intended  to  secure. 

'•  If  upon  the  face  of  this  treaty  it  could  be  seen  that  its  sole  object 
was  to  secure  the  transfer  of  an  individual  from  the  jurisdiction  of 
one  sovereignty  to  that  of  another,  the  argument  might  be  sound ; 
but  as  this  right  of  transfer,  the  right  to  demand  it,  the  obligation 
to  grant  it,  the  proceedings  under  which  it  takes  place,  all  show 
that  it  is  for  a  limited  and  defined  purpose  that  the  transfer  is  made, 
it  is  impossible  to  conceive  of  the  exercise  of  jurisdiction  in  such  a 
case  for  any  other  purpose  than  that  mentioned  in  the  treaty,  and 
ascertained  by  the  proceedings  under  which  the  party  is  extradited, 
without  an  implication  of  fraud  upon  the  rights  of  the  party  extra- 
dited, and  of  bad  faith  to  the  country  which  permitted  his  extra- 
dition. Xo  such  view  of  solemn  public  treaties  between  the  great 
nations  of  the  earth  can  be  sustained  by  a  tribunal  called  upon  to 
give  judicial  construction  to  them. 

''  The  opposite  view  has  been  attempted  to  be  maintained  in  this 
country  upon  the  ground  that  there  is  no  express  limitation  in  the 
treaty  of  the  right  of  the  country  in  which  the  offense  was  com- 
mitted to  try  the  person  for  the  crime  alone  for  which  he  was  ex- 
tradited, and  that  once  being  within  the  jurisdiction  of  that  country, 
no  matter  by  what  contrivance  or  fraud  or  by  what  pretense  of 
establishing  a  charge  provided  for  by  the  extradition  treaty  he  may 
have  been  brought  within  the  jurisdiction,  he  is,  when  here,  liable 
to  be  tried  for  any  offense  against  the  laws  as  though  arrested  here 
originally.  This  jn-oposition  of  the  absence  of  express  restriction  in 
the  treat}^  of  the  right  to  try  him  for  other  offenses  than  that  for 
which  he  was  extradited,  is  met  by  the  manifest  scope  and  object  of 
the  treaty  itself.  The  caption  of  the  treaty,  already  quoted,  declar- 
ing that  its  purpose  is  to  settle  the  boundary  line  between  the  two 
governments  ;  to  provide  for  the  final  suppression  of  the  African 
slave  trade  ;  adds,  '  and  for  the  giving  up  of  criminals,  fugitive  from 
justice,  in  certain  cases?  The  treaty,  then,  re(piires,  as  we  have 
alread}'^  said,  that  there  shall  be  given  up,  upon  requisitions  respect- 
ively made  by  the  two  governments,  all  persons  charged  with  any 
of  the  seven  crimes  enumerated,  and  the  provisions  giving  a  party 
an  examination  before  a  proper  tribunal,  in  which,  before  he  shall 
be  delivered  up  on  this  demand,  it  must  be  shown  that  the  offense 
for  which  he  is  demanded  is  one  of  those  enumerated,  and  that  the 
proof  is  sufficient  to  satisfy  the  court  or  magistrate  l>efore  whom 


CHAP.  11.]  UNITED    STATES    V.  EAUSCHER.  1 


)( 


this  exiuniiiation  takes  place  that  he  is  guilty  and  such  as  the  law 
of  State  of  the  asylum  requires  to  establish  such  guilt,  leave  no  rea- 
son to  doubt  that  the  fair  purpose  of  the  treaty  is,  that  the  person 
shall  be  delivered  up  to  be  tried  for  that  offense  and  for  no  other. 

"  If  there  should  remain  any  doubt  upon  this  construction  of  the 
treaty  itself,  the  language  of  two  acts  of  Congress,  heretofore  cited, 
incorporated  in  the  Revised  Statutes,  must  set  this  question  at  rest. 
Rev.  Stat.  §§  3272,  3275.  *  *  * 

"  The  obvious  meaning  of  these  two  statutes,  which  have  reference 
to  all  treaties  of  extradition  made  by  the  United  States,  is  that  the 
party  shall  not  be  delivered  up  by  this  government  to  be  tried  for 
any  other  olfense  than  that  charged  in  the  extradition  proceedings  ; 
and  tliat,  when  brought  into  this  country  upon  similar  proceedings, 
he  shall  not  be  arrested  or  tried  for  any  other  offense  than  that  with 
Avhicli  he  Avas  charged  in  those  proceedings,  until  he  shall  have  had 
a  reasonable  time  to  return  unmolested  to  the  country  from  which  he 
Avas  brought.  This  is  undoubtedly  a  congressional  construction  of  the 
purpose  and  meaning  of  extradition  treaties  such  as  the  one  we  have 
under  consideration,  and  whether  it  is  or  not,  it  is  conclusive  upon 
the  judiciary  of  the  right  conferred  upon  persons  bought  from  a  for- 
eign country  into  this  under  such  proceedings. 

"  That  right,  as  we  understand  it,  is  that  he  shall  be  tried  only  for 
the  offense  with  which  he  is  cliarged  in  the  extraditicm  proceedings, 
and  for  which  he  was  delivered  up,  and  that  if  not  tried  for  that,  or 
after  trial  and  acquittal,  he  shall  have  a  reasonable  time  to  leave  the 
country  before  he  is  arrested  upon  the  charge  of  any  other  crime 
committed  previous  to  his  extradition.  *  *  * 

"  Upon  a  review  of  these  decisions  of  the  Federal  and  State  courts, 
to  which  may  be  added  the  opinions  of  the  distinguished  writers 
which  we  have  cited  in  the  earlier  part  of  this  opinion,  we  feel  author- 
ized to  state  that  the  weight  of  authority  and  of  sound  principle  are 
in  favor  of  the  proposition,  that  a  person  who  has  been  brought 
within  the  jurisdiction  of  the  court  by  virtue  of  proceedings  under 
an  extradition  treaty,  can  only  be  tried  for  one  of  the  offenses  de- 
scribed in  that  treaty,  and  for  the  offense  with  which  he  is  charged  in 
the  proceedings  for  his  extradition,  until  a  reasonable  time  and  oppor- 
tunity have  been  given  him,  after  liis  release  or  trial  upon  such 
charge,  to  return  to  the  country  from  whose  asylum  he  had  been  for- 
cibly taken  under  those  proceedings." 

Wa^t,  C.  J.,  dissented  from  the  opinion  of  the  court.^ 

^  The  decision  in  Rauscher's  case  put  an  end  to  a  controversy  between  tlie  United 
States  and  England,  of  some  years'  standing,  as  to  the  interpretation  of  the  extradi- 
tion clause  of  the  treaty  of  1S42.    England  had  contended  that  a  person  surrendered 


158  TEKKITOKIAL   JURISDICTION.  ['P^UT  1. 

TRDIBLE'S  CASE,  1884. 

(Moort  OH  Extradition,  I.,  160.) 

The  question  as  regards  the  power  aud  duty  of  a  State  to  surrender  its  own 
/•itizt'iib  un(h?r  treaties  of  extradition. 

The  question  of  the  power  of  the  government  of  the  United  States 
to  surrender  its  citizens  under  tlie  treaty  witli  Mexico  of  ISGl,  was 
discussed  in  1884,  in  tlie  case  of  Alexander  Trimble,  an  American 
citizen,  whose  extradition  was  demanded  on  charges  of  robbery  and 
nuu'der. 

The  first  article  of  the  treaty  stipulates  that  the  contracting  parties 
shall,  on  requisition  "  deliver  up  to  justice  persons,  who,  etc."  But 
in  the  sixth  article,  it  is  further  declared  that  "neither  of  the  con- 
tracting parties  shall  be  bound  to  deliver  up  its  own  citizens  under 
the  stipulations  of  this  treaty." 

The  government  of  the  United  States  declined  to  order  the  sur- 
render of  the  prisoner,  on  tbe  ground  that,  as  the  treaty  negatived 
any  obligation  to  do  so,  the  President  was  not  invested  with  legal 
authority  to  act. 

Mr.  Frelinghuysen  said,  "  It  appears  that,  by  the  opinions  of  several 
Attorneys-General,  by  the  decisions  of  our  courts,  and  by  the  rulings 
of  the  Department  of  State,  the  President  has  not,  independent  of 

under  the  treaty,  could  be  tried  for  no  offense  except  the  specific  one  for  which 
extradition  was  accorded.  The  government  of  the  United  States  liad  insisted,  on  the 
other  hand,  tliat  a  person  once  extradited  could  be  indicted  and  trie.l  for  offenses 
other  than  that  charged  in  the  demand  for  extradition.  (See  the  cases  of  Law- 
rence aud  Winslow,  Moore's  Extradition,  I.,  196-219  ;  Wharton's  Digest,  II., 
§270  ;  U.  S.  Foreign  Relations,  1876.) 

The  Supreme  Court,  in  Kanscher's  case,  upholds  the  English  view  of  the  question. 

Previous  to  this  authoritative  decision,  judicial  opinion  had  been  divided.  In 
accord  with  this  decision  :  Com.  v.  Ilawes,  1877,  13  Bush.,  697;  lilanford  v.  The 
State,  1881, 10  Texas  App.,  627;  WatVs  Case,  1882, 14  Fed.  Rep.,  139;  State  v.  Van- 
derpool,  1881,  39  Ohio  State,  237.  Contra  :  CaldweWs  Case,  1871,  8  Blatch,  131  ; 
La'jarve's  Case,  1873,  14  Abb.  Pr.  (N.  S.),  333;  In  re  Miller,  1885,  23  Fed.  Rep.,  32; 
Ex  parte  Ilihbs,  1886,  26  Fed.  Rep.,  422. 

The  decisions  of  the  French  court  of  Cassation  are  in  accord  with  that  of  tlie 
United  States  Supreme  Court:  Dalloz,  1S67,  p.  281,  Xo.  6,  and  lb.,  1874,  p.  502 and 
notes. 

In  Rauscher's  case,  the  Supreme  Court  expressed  the  opinion  lliat.  in  the 
absence  of  treaty,  there  was  under  international  law  no  right  of  extradition. 

And  further  that,  in  the  United  States,  extradition  is  a  matter  exclusively  in  the 
control  of  the  Federal  government.  (See  Ex  parte  Holmes,  1840,  12  Vt.,  631; 
Holmes  V.  JeiUiisoh,  14  Peters,  540;  People  v,  Curtis,  50  X.  Y.,  321.) 


CHAP.  11.]  tremble's   case.  1;J9 

treaty  provision,  the  power  of  extraditing  an  American  citizen;  and 
the  only  question  to  be  considered  is  wlietlier  the  treaty  witli  Mexico 
confers  that  power. 

"  By  the  treaty  with  Mexico  proclaimed  June  20, 1SG2,  tliis  country 
places  itself  under  obligations  to  Mexico  to  surrender  to  justice 
persons  accused  of  enumerated  crimes  committed  within  the  jurisdic- 
tion of  Mexico  who  shall  be  found  Avithin  the  territory  of  the  United 
States;  and  further  provides  that  that  obligation  shall  not  extend 
to  the  surrender  of  American  citizens.  The  treaty  confers  upon  the 
President  no  affirmative  power  to  surrender  an  American  citizen. 
The  treaty  between  the  United  States  and  Mexico  creates  an  oljliga- 
tion  on  the  part  of  the  respective  governments,  and  does  no  more, 
and  where  the  obligation  ceases  the  power  falls.  It  is  true  that 
treaties  are  the  laws  of  the  land,  but  a  statute  and  a  treaty  are  sub- 
ject to  different  modes  of  construction.  If  a  statute  by  the  first 
section  should  say,  The  President  of  the  United  States  shall  sur- 
render to  any  friendly  power  any  person  who  has  committed  a  crime 
against  the  laws  of  that  power,  but  shall  not  be  bound  so  to  sur- 
render American  citizens,  it  might  be  argued,  perhaps  correctly,  that 
the  President  had  a  discretion  whether  he  would  or  would  not  sur- 
render an  American  citizen.  But  a  treaty  is  a  contract,  and  must 
be  so  construed.  It  confers  upon  the  President  only  the  power  to 
perform  that  contract.  I  understand  the  treaty  with  Mexico  as  read- 
ing thus :  The  President  shall  be  bound  to  surrender  any  person 
guilty  of  crime,  unless  such  person  is  a  citizen  of  the  United  States. 

"  Such  being  the  constrtiction  of  the  treaty,  and  believing  that  the 
time  to  prevent  a  violation  of  the  law  of  extradition  was  before  the 
citizens  left  the  jurisdiction  of  the  United  States,  I  telegraphed  the 
Governor  of  Texas  that  an  American  citizen  cf)uld  not  legally  be  held 
under  the  treaty  for  extradition. 

"  It  would  be  a  great  evil  that  those  guilty  of  high  crime,  whether 
American  citizens  or  not,  should  go  unpunished ;  but  even  that  re- 
sult could  not  justify  an  usurpation  of  power. 

"On  further  reflection,  in  view  of  the  fact  that  fourteen  of  our 
treaties  with  other  nations  contain  provisions  identical  with  that  con- 
tained in  our  treaty  with  Mexico,  and  impressed  also  with  the  fact 
that  the  safety  and  peace  of  society  on  the  frontier  would  be  greatly 
injured  if  criminals,  because  citizens  of  this  country,  could  here  find 
an  asylum  and  go  unpunished,  I  concluded  that  the  question  was  one 
of  too  much  importance  to  l>e  settled  by  the  dictum  of  any  individual, 
but  should  receive  judicial  determination,  and  to  this  end  I  telegraphed 
the  ofiBcers  to  hold  the  accused  until  they  received  other  direction. 
The  accused  had,  however,  after  my  first  telegram,  been  discharged 


160  TERRITORIAL    JURISDICTION.  [PART  I. 

"  T  now  propose  to  iiiforiii  the  ofQcers  in  Texas,  who,  subject  to 
the  supervision  of  tlie  President,  are  autliorized  to  determine  wliether 
a  surrender  of  the  accused  should  be  made,  that  if  another  arrest  is 
made  and  a  case  of  guilt  is  made  out,  the  President  will  not,  on  the 
ground  of  citizenship,  interfere  Avith  an  order  of  surrender  if  such 
be  made,  but  requires  that  the  accused  be  informed  that  if  he  or  they 
wish  a  hearing  before  the  Supreme  Court  of  the  United  States  on 
habeas  corpus  as  to  the  poAver  of  the  President  in  the  matter  of  ex- 
tradition, or  as  to  the  true  construction  of  the  treaty  before  the  sur- 
render be  actually  made,  every  facility  for  such  hearing  will  be 
afforded.  Should  the  court  hold  that  the  President  has  a  discre- 
tionary power  of  extraditing  citizens  proven  guilty  of  crime,  the  evil 
apprehended  will  not  be  realized ;  and  should  the  court  hold  that 
the  President  has  the  power  to  extradite  only  when  Ijound  l)y  treaty 
to  do  so,  Congress  can  then,  if  it  should  l)e  its  pleasure,  by  statute 
confer  the  discretionary  power.''  ^ 

^  In  a  similar  case,  in  1893,  not  yet  reported,  it  is  understoo  1  that  the  Federal 
District  Court  of  Texas  discharged  the  jjrisoner,  on  the  grounds  stated  by  Mr. 
Frelinghuysen,  thus  preventing  a  review  of  the  question  by  the  Supreme  Court. 

"  The  exemption  of  citizens  from  extradition  has  been  maintained  on  various 
grounds.  The  only  one  which  need  seriously  be  noticed  is  that  by  the  laws  of 
most  countries  provision  is  made  for  the  trial  an  1  punishment  of  their  citizens  for 
offenses  committed  abroad,  and  that  a  State  should  not  deliver  up  one  of  its  citi- 
zens to  be  tried  before  a  foreign  tribunal  when  he  can  be  punished  at  home  under 
its  own  laws.  By  England  and  the  United  States  alone  are  offenses,  even  when 
committed  by  their  citizens  or  subjects,  trer,ted  as  entirely  local."  (Moore's  Ex- 
tradition, I.,  153.) 

In  negotiating  extradition  treaties  these  two  states  have  therefore  been  willing 
to  stipulate  for  the  rendition  of  their  own  subjects  or  citizens.  Indeed,  the  United 
States  for  a  time  refused  to  enter  into  extradition  treaties  on  any  other  basis;  but 
since  1S52  this  objection  appear.i  to  have  baen  waived,  and  a  large  number  of  our 
treaties  of  extradition,  as  that  witli  Mexico,  exempts  each  party  from  the  obliga- 
tion to  surrender  its  own  citizens. 

But  as  this  exemption  fro.u  thi  obligation  to  surrender  citizens  was  doubtless 
inserted  in  these  treaties  in  deference  to  the  opinion  of  other  states,  it  is  not  prob- 
able that  it  was  intended  as  an  absolute  prohibition  upon  the  President  of  the 
United  States;  indeed,  the  wording  of  the  clause  would  seem  to  imply  a  discretion 
on  the  part  of  the  contracting  parties. 

In  1S80,  the  Institute  of  International  Law,  after  an  exh::M3'ive  discussion  of 
the  subject  of  extradition,  adopted  a  series  of  resolutions,  the  sixth  of  which  was 
as  follows: — 

"  Between  countries  whose  criminal  legislation  rests  on  similar  foundations,  and 
which  have  confidence  in  each  others  ju  licial  institutions,  the  extradition  of  their 
own  citizens  would  be  a  means  of  securing  the  good  administration  of  criminal 
justice,  because  it  ought  to  be  desirable  that  the  authorities  of  i\\Q  forum  delicti 
commissi  should,  if  possible,  be  called  upon  to  try  the  case." 

See  on  this  subject:  Moore's  Extradition,  I.,  152;  Dana's  Wheaton,  pp.  189-191, 
notes. 


CHAP.  II.]  CASE   OF    CAZO.  101 


CASE  OF  CAZO,  1SS7. 

(Moore  on  Eztrivlltion,  I.,  324.) 
What  constitutes  a  political  offense  ? 

On  February  .3,  1887,  the  Mexican  minister  presented  a  request  for 
the  extradition  of  one  "Francisco  J.  Cazo  and  his  accomplices," 
charged  with  murder,  assault  with  intent  to  commit  murder,  and 
robbery,  committed  in  the  town  of  Af^ualeguas,  in  the  state  of  Xuevo 
Leone,  3Iexico,  on  the  Uth,  12th,  and  13th  of  July,  1886,  who  had 
taken  refuge  in  Texas. 

The  evidence  disclosed  that  three  or  four  days  previously  to  the 
11th  of  July,  it  was  reported  that  Cazo  was  coming  to  attack  the 
town.  Just  before  midnight  on  the  10th  of  July,  a  number  of  per- 
sons ware  observed  to  leave  the  place  armed,  and  about  two  o'clock 
on  the  morning  of  the  11th  an  attack  was  made  by  a  party  of  thirty  or 
more  persons,  who  could  not  be  identified,  but  who  kept  shouting, 
"  Hurrah  for  Don  Francisco  J.  Cazo,  and  death  to  the  Garra  pai-ty  !  " 
The  raiders  kept  possession  of  the  town  for  nearly  three  days,  during 
which  time  they  had  armed  encounters  with  the  inhabitants,  seized 
horses  and  other  property,  and  committed  other  acts  of  violence. 
When  they  departed,  Cazo  left  a  proclamation  with  a  citizen  of  the 
town  with  directions  to  publish  it.  In  reply  to  the  application  for 
extradition,  Mr.  Bayard,  then  Secretary  of  State,  on  February  7, 
1887,  wrote  as  follows  : 

"  After  a  careful  examination  of  the  papers  enclosed  in  your  note, 
I  am  unable  to  avoid  the  conclusion  that  the  acts  of  Cazo  and  his 
associates,  who  were  about  thirty  or  forty  in  number,  were  clearly 
of  a  political  character,  and  consequently,  under  the  express  terms  of 
article  VI.  of  the  treaty  above  mentioned,  are  not  a  proper  basis  for 
extradition.  The  character  of  the  outbreak,  the  kind  and  quantity 
of  the  property  taken,  and  the  mode  of  attack  all  lead  to  that  con- 
clusion. 

"Although  the  first  assault  of  Cazo's  party  was  made  in  the  night, 
there  was  no  effort  to  conceal  the  personal  identity  of  the  leader, 
and  such  property  as  was  seized  was  taken  manifestly  for  the  pur- 
l-)ose  of  military  equipment,  for  which  it  Avas  adapted.  The  evidence 
offered  of  the  fact  that  Cazo  led  the  attack  is  the  testiin-^ny  of  several 
witnesses  that  the  assailants  cried,  '  Hurrah  for  Don  Francisco  J. 
Cazo!  "  and  at  least  one  witness  testifies  to  the  additional  andaccom- 
11 


162  TEiUlITOIlIAL   JUKISDICTION.  [PAET  I. 

pan3ing  exclamation  of,  '  Death  to  the  Garra  party ! '     Another  wit- 
ness states  that  Cazo  left  a  proclamation  in  the  hands  of  a  resident 
of  Agnaleguas,  with  a  view  to  its  publication.     Indeed,  all  the  cir- 
cumstances point  to  the  conclusion  that  the  atfair  was  an  avowed, 
partisan  political  conflict." 


THE    ST.    ALBAXS   RAID,    1864. 

{Moore  on  Extradition,  I.  322.) 

"Wliat  constitutes  a  political  offense  ? 

On  October  19, 18G4,  one  Bennett  H.  Young  and  thirteen  or  four- 
teen associates,  all  of  whom  had  come  over  from  Canada  for  the  pur- 
pose, raided  the  town  of  St.  Albans,  in  the  State  of  Vermont ;  pil- 
laged the  bank  ;  set  fire  to  several  buildings  ;  took  and  held  a  number 
of  citizens  as  prisoners  ;  and  committed  other  acts  of  violence.  While 
in  possession  of  the  bank  they  seized  a  man  named  Breck,  who  had 
entered  on  private  business,  and  b}-  threats  of  violence  compelled 
him  to  give  up  a  sum  of  mone}^  which  he  had  in  his  possession.  They 
were  finally  driven  away  by  the  citizens  of  the  town,  one  of  whom 
was  killed.  On  October  25  and  •29,  andXovember  1, 1864,  Mr.  Seward 
made  requisitions  for  their  surrender  on  charges  of  murder,  assault 
with  intent  to  commit  murder,  and  robbery.  They  were  all  arrested 
in  Canada,  and  lodged  in  jail  at  ^Montreal.  Passing  over  other  pro- 
ceedings, which  will  be  noticed  in  their  proper  place,  they  were 
brought  before  Justice  Coursol,  of  the  city  of  Montreal,  by  whom 
they  were,  on  December  13,  1864,  discharged  on  the  ground  that,  as 
there  was  no  warrant  from  the  Governor-general  to  authorize  their 
arrest,  as  required  by  the  Imperial  extradition  act  then  in  force,  there 
was  no  jurisdiction  to  hear  the  case,  and  no  justification  for  the  fugi- 
tives' further  detention.  Immediately  upon  their  discharge,  a  war- 
rant was  issued  by  3Ir.  Justice  Smith,  of  the  superior  court,  for  their 
re-arrest.  On  this  warrant  only  five  of  the  fugitives  were  taken,  and 
these  were  brought  back  to  Montreal  and  lodged  in  jail.  Their  ex- 
amination was  proceeded  M'ith  before  Judge  Smith  from  time  to  time 
until  March  25,  when  he  discharged  them.  Various  grounds  were 
taken  on  behalf  of  the  prisoners.  The  only  one  to  be  noticed  in  this 
place  is  the  claim  made  that  the  acts  with  which  they  were  charged 
were  belligerent,  and  therefore  not  within  the  extradition  treaty.  It 
was  shown  that  Young  held  a  commission  as  a  first  lieutenant  in  the 
army  of  the  Confederate  States,  under  an  appointment  by  President 


CHAP.  II.]  IN   KE   CASTIOXI.  1G3 

Davis,  dated  June  16, 1864,  and  signed  by  Jas.  A.  Seddon  as  Secretary 
of  War.  It  was  contended  that  in  the  attack  on  St.  Albans  he  was 
acting  as  an  officer  under  his  commission,  and  that  the  other  prisoners 
were  soldiers  of  the  Confederate  army,  acting  under  his  command. 
After  an  extended  discussion  of  the  facts  and  the  law.  Judge  Smitw 
states  his  conclusions  in  the  following  language  ; — 

"  I  am  therefore  constrained  to  hold  that  the  attack  on  St.  Albans 
was  a  hostile  expedition,  authorized  both  expressly  and  impliedly  by 
the  Confederate  States;  and  carried  out  by  a  commissioned  officer  of 
tlieir  army  in  command  of  a  party  of  their  soldiers.  And,  therefore, 
that  no  act  connnitted  in  the  course  of,  or  as  incident  to,  that  attack 
can  be  made  the  ground  of  extradition  under  the  Ashburton  treaty. 
And  that  if  there  had  been  any  breach  of  neutrality  in  its  inception, 
upon  which  point  I  state  no  opinion,  it  does  not  afi'ect  this  appli- 
cation, which  must  rest  entirely  upon  the  acts  of  the  prisoners  within 
the  territories  of  the  state  demanding  their  extradition,  and  upon 
their  own  status  and  authority  as  belligerents."  ^ 


In  Be  CASTIONI. 
Queen's  Bench,    1890. 
(  L.  R.  Queen's  Bench  T>iv.,  149.) 
What  constitutes  a  political  offense  ? 

On  an  application  for  a  writ  of  habeas  corpus,  the  motion  was  made 
on  behalf  of  Angelo  Castioni,  for  an  order  nisi  calling  upon  the  solic- 
itor to  the  Treasury,  Franklin  Lushington,  Esq. ,  a  metropolitan 
police  magistrate,  and  the  consul-general  of  Switzerland,  as  repre- 
sentative of  the  Swiss  Repul)lic,  to  show  cause  why  a  writ  of  habeas 
corpus  should  not  issue  to  bring  up  the  body  of  Castioni  in  order 
that  he  might  be  discharged  from  custody. 

The  prisoner  Castioni  had  been  arrested  in  England  on  the  requi- 
sition of  the  Swiss  Government,  and  brought  before  the  magistrate 
at  the  police  court  at  Bow  Street,  and  by  him  committed  to  prison 
for  the  purpose  of  extradition,  on  a  charge  of  willful  murder,  alleged 
to  have  been  committed  in  Switzerland. 

The  facts,  which  were  contained  in  depositions  sent  from  Switzer- 
land, in  the  depositions  taken  before  the  magistrate  at  Bow  Street, 

^  In  the  case  of  Builey,  1864,  who  was  charged  with  similar  hostile  acts  against 
United  States  vessels  on  Lake  Erie,  the  accused  was  arrested  in  Canada,  and  sin-ren- 
dered up  to  the  United  States.  But  on  his  trial,  in  Ohio,  the  court  held  that  his  acts 
were  belligerent  and  not  committed  animo  furandi.    (Moore's  Extradition,  I.,  ol'J.) 


164  TERRITORIAL   JURISDICTION.  [PAKT   t 

and  in  affidavits  used  on  the  hearing  of  the  motion  were  sliortl}-  as 
follows  :  — 

The  prisoner  was  charged  with  the  murder  of  Luigi  Rossi,  by  shoot- 
ing him  with  a  revolver  on  September  11,  1800,  in  the  town  of  Bel- 
linzona,  in  tlie  canton  of  Ticino,  in  Switzerland.  The  deceased,  Rossi, 
\\"as  a  member  of  the  State  Council  of  tlie  canton  of  Ticino,  and  was 
about  twenty-six  years  of  age.  The  prisoner,  Castioni,  was  a  citizen 
of  the  same  canton  ;  he  liad  resided  for  seventeen  years  in  England, 
and  arrived  at  Ijellinzona  on  Septeml)er  10,  1890.  For  some  time 
previous  to  this  date  much  dissatisfaction  had  been  felt  and  expressed 
by  a  large  number  of  the  inhabitants  of  Ticino  at  the  mode  in  wlncli 
tlie  political  party  then  in  power  were  conducting  the  government 
of  the  canton.  A  request  was  presented  to  the  Government  for  a 
I'evision  of  tlie  constitution  of  the  canton,  under  art.  15  of  the  consti- 
tution, which  provides  that  "  The  constitution  of  the  canton  may  be 
revised  wholly  or  partially.  *  *  *  (b)  at  the  request  of  7,000  citizens 
presented  with  the  legal  formalities.  In  this  case  the  council  shall 
wdthin  one  month  submit  to  the  people  the  question  whether  or  not 
they  wish  to  revise  the  constitution,"  and  a  law  of  May  9,  1877, 
prescribes  the  course  to  be  adopted  for  the  execution  of  letter  (b)  of 
art.  15, 

The  Government  having  declined  to  take  a  popular  vote  on  the 
question  of  the  revision  of  the  constitution,  on  September  11,  1890, 
a  number  of  the  citizens  of  Belliiizona,  among  whom  was  Castioni, 
seized  the  arsenal  of  the  town,  from  which  they  took  rifles  and  am- 
munition, disarmed  the  gendarmes,  arrested  and  bound  or  handcuffed 
several  persons  connected  with  the  Government,  and  forced  them 
to  march  in  front  of  the  armed  crowd  to  the  municipal  palace.  Ad- 
mission to  the  palace  was  demanded  in  the  name  of  the  people,  and 
was  refused  by  Rossi  and  another  member  of  the  Government, 
who  were  in  the  palace.  The  crowd  then  broke  open  the  outer  gate 
of  the  palace,  and  rushed  in,  pushing  before  them  the  Government 
officials  whom  they  had  arrested  and  bound;  Castioni,  who  was 
armed  with  a  revolver  was  among  the  first  to  enter.  A  second  door, 
which  was  locked,  was  broken  open,  and  at  this  time,  or  immediately 
after,  Rossi,  who  was  in  the  passage,  was  shot  through  the  body 
with  a  revolver,  and  died  very  soon  afterwards.  Some  other  shots 
were  fired,  but  no  one  else  was  injured.  Two  witnesses,  wiio  were 
present  Avhen  the  shot  was  fired,  and  were  called  before  the  magis- 
trate at  Bow  Street,  identified  Castioni  as  the  person  who  fired  the 
shot.  One  of  the  Avitnesses  called  for  the  prisoner  was  an  advocate 
named  Bruni,  who  had  taken  a  leading  part  in  the  attack  on  the 
municipal  palace.     In  cross-examination   he   said :    "  The  death  of 


CHAr.  II.]  IN    RE   CASTIONI.  1G,3 

Rossi  was  a  misfortune,  and  not  necessary  for  the  rising."  There 
was  no  evidence  tliat  Castioni  had  any  previous  knowledge  of 
liossi.  The  crowd  then  occupied  the  pahice,  disarmed  tlie  gendarmes 
wlio  were  there,  and  imprisoned  several  members  of  the  Government. 
A  provisional  Government  was  appointed,  of  which  IJruni  was  a 
member,  and  assumed  the  Government  of  the  canton,  which  it  re- 
tained until  disi)ossessed  by  the  armed  intervention  of  the  Federal 
Government  of  the  llepublic. 

The  magistrate  was  of  opinion  that  the  identification  of  Castioni 
was  sufficient,  and  held  upon  the  evidence  that  the  bar  to  extradition 
specified  in  §  8  of  the  Extradition  Act,  1870:  "A  fugitive  criminal 
.shall  not  be  surrendered  if  the  offence  in  respect,  of  which  his  sur- 
render is  demanded  is  one  of  a  political  character,  or  if  he  prove  to 
the  satisfaction  of  the  police  magistrate,  or  the  court  before  whom 
he  is  brought  on  habeas-corjrus,  or  to  the  Secretary  of  State,  that  the 
requisition  for  his  surrender  has  in  fact  been  made  with  a  view  to 
try  or  punish  liim  for  an  offence  of  a  political  character,"  did  not 
exist,  and  committed  Castioni  to  prison.  By  the  extradition  treaty 
with  Switzerland, dated  Nov.  26,  1880,  article  11 :  "A  fugitive  crim- 
inal shall  not  be  surrendered  if  the  offence  in  respect  of  which  his 
surrender  is  demanded  is  one  of  a  political  character,  or  if  he  prove 
that  the  requisition  for  his  surrender  has  in  fact  been  made  with  a 
view  to  try  and  punish  him  for  an  offence  of  a  political  character." 

Sir  Charles  Russell,  for  the  prisoner;  the  Attorney-General,  for  the 
Crown. 

Dexmax,  J. : — "  Looking  at  the  extreme  importance  of  this  case, 
I  should  have  been  disposed,  if  I  had  felt  any  serious  doubt  as  to  the 
course  we  ought  to  pursue,  to  have  taken  time,  not  so  much  to  con- 
sider what  our  judgment  should  be,  as  to  take  care  to  put  it  in  the 
best  possible  shape,  or  even  to  reduce  it  to  writing.  But  there  are 
many  considerations  which  apply  to  cases  of  this  sort.  One  is,  that 
here  is  a  man  in  custody  who  has  been  in  custody  for  a  considerable 
time,  and  no  greater  delay  than  is  reasonably  necessary  ought  to  be 
interposed  if  our  decision  should  be  one  to  the  effect  that  he  ought 
not  to  be  in  custody  any  longer.  I  am  unable  to  entertain  a  doubt 
that  this  is  a  case  in  which  we  ought  to  order  that  the  prisoner  be 
discharged. 

"There  has  been  no  legal  decision  as  yet  upon  the  meaning  of 
the  words  contained  in  the  act  of  1870,  upon  the  true  meaning  of 
which  this  case  mainly  depends.  We  have  had  many  definitions  sug- 
gested, and  great  light  has  been  thrown  upon  the  possible  and  prob- 
able meaning  of  the  words  by  the  arguments  that  have  1)een  ad- 
dressed to  us,  applying  not  only  the  language  of  judges,  but  language 


1G6  Ti:i;i:iTOKiAL  jueisdictiox.  [part  l 

used  in  text-books,  language  used  by  great  political  authorities,  and  in 
one  case  by  a  most  learned  philosopher.  I  think  it  has  been  useful 
in  such  a  case  as  this  that  we  should  hear  a  discussion  as  to  the  pos- 
sible meaning  of  the  words,  as  it  has  occurred  that  they  ought  to  be 
construed  to  people  such  as  those  whose  opinions  have  been  cited, 
and  especially  I  may  apply  that  observation  to  the  case  of  my 
very  learned  brother  whose  assistance  we  have  on  this  occasion 
in  deciding  the  present  case.  I  do  not  tlmik  it  is  necessary  or  de- 
sirable that  we  should  attemjat  to  put  into  language,  in  the  shape  of 
an  exhaustive  definition,  exactly  the  whole  state  of  things,  or  every 
state  of  things  which  bring  a  particular  case  within  the  description 
of  an  offence  of  a  political  character.  I  wish,  however,  to  express 
an  opinion  as  to  one  matter  upon  which  I  entertain  a  very  strong 
opinion.  That  is,  that  if  the  description  given  by  Mr.  John  Stuart 
]Mill,  '  Any  offence  committed  in  the  course  of  or  furthering  of  civil 
war,  insurrection,  or  political  commotion,*  were  to  be  construed  in 
the  sense  that  it  really  means  any  act  which  takes  place  in  the 
course  of  a  political  rising  without  reference  to  the  object  and  hiten- 
tion  of  it,  and  other  circumstances  connected  with  it,  I  should  say 
that  it  was  a  wrong  definition  and  one  which  could  not  be  legally  ap- 
plied to  the  words  in  the  x\ct  of  Parliament.  Sir  Charles  Russell 
suggested  that  '  in  the  course  of '  was  to  be  read  with  the  words  fol- 
lowing, '  or  in  furtherance  of,'  and  that  '  in  furtherance  of  is  equiv- 
alent to  '  in  the  course  of.'  I  cannot  quite  think  that  this  was  the 
intention  of  the  speaker,  or  is  the  natural  meaning  of  the  expression ; 
but  I  entirely  concur  with  the  observation  of  the  Solicitor-General 
that  in  the  other  sense  of  the  words,  if  they  are  not  to  be  construed 
as  mere! 3'  equivalent  expressions,  it  would  be  a  wrong  definition. 
I  think  that  in  order  to  bring  the  case  within  the  words  of  the  Act 
and  to  exclude  extradition  for  such  an  act  as  murder,  which  is  one 
of  the  extradition  offences,  it  must  at  least  be  shown  that  the  act 
is  done  in  furtherance  of,  done  with  the  intention  of  assistance,  as  a 
sort  of  overt  act  in  the  course  of  acting  in  a  political  matter,  a  polit- 
ical rising,  or  a  dispute  between  two  parties  in  the  state  as  to  which 
is  to  have  tlie  government  in  its  hands,  before  it  can  be  brought 
within  the  meaning  of  the  words  used  in  the  act. 

"  Sir  Charles  Russell  has  argued  that  in  every  case  it  is  for  the 
party  seeking  extradition  to  bear  the  onus  of  affirmatively  bringing 
it  within  the  meaning  of  those  words.  On  the  other  hand,  it  has 
been  contended  tliat  if  there  be  an  extraditable  offence,  the  onus  is 
upon  tlie  person  seeking  the  benefit  of  those  words  to  show  a  case 
in  which  extradition  can  be  avoided.  I  do  not  myself  think  tlr.vt  it 
is  possible  to  decide  a  case  such  as  this,  or  the  true  meaning  of  taose 


CHAP.  II.]  IN    RE   CASTIONl.  l('iT 

words,  l)y  applyinc^  any  such  test  as  on  whom  is  the  onus.  I  do  not 
tliiidc  it  is  intended  that  a  scrap  oi  a  ^^rima  /acie  case  on  tlie  one 
side  sliould  have  tlie  effect  of  tin-owing  upon  the  other  side  the  onus 
of  proving  or  disproving  liis  position.  I  hjok  at  tlie  words  of  the 
act  themselves  and  I  think  that  they  are  against  any  such  narrow 
technical  mode  of  dealing  with  the  case.  The  words  of  s.  3,  subd. 
1,  are  'a  fugitive  criminal  shall  not  be  surrendered  if  the  offence  in 
respect  of  which  his  surrender  is  demanded  is  one  of  a  political 
character.'  The  section  itself  begins  :  '  The  following  restrictions 
shall  be  observed  with  respect  to  the  surrender  of  fugitive  criminals.' 
There  is  nothing  said  as  to  upon  whom  is  the  07ius  prohandl,  or  that 
it  shall  be  made  to  appear  by  one  side  or  the  other  in  such  a  case. 
It  is  a  restriction  upon  the  surrender  of  a  fugitive  criminal,  and 
however  it  appears,  if  it  does  appear,  that  the  act  was,  in  the  judg- 
ment of  the  court,  an  offence  which  would  otherwise  be  an  offence 
according  to  the  laws  of  this  country,  but  an  offence  of  a  political 
character,  then  wholly  irrespective  of  any  doctrine  of  onus  on  the  one 
side  or  the  other,  that  is  within  the  jurisdiction,  and  he  caimot  be 
surrendered.  It  was  at  first  contended,  in  opposition  to  the  application 
for  a  Jiaheas  corinis,  that  if  the  magistrate  upon  this  question  once 
made  up  his  mind,  the  court  had  no  jurisdiction  to  deal  with  it. 
It  appears  to  me  that  this  proposition  cannot  be  maintained  on  the 
very  face  of  the  act  itself,  which  requires  by  s.  11  that  the  magistrate 
shall  inform  the  prisoner  that  he  may  apply  for  a  habeas  co)-pus,  and 
if  he  is  entitled  to  apply  for  a  habeas  corjnis,  I  think  it  follows  that 
this  court  must  have  power  to  go  into  the  whole  matter,  and  in 
some  cases,  certainly  if  there  be  fresh  evidence,  or  perhaps  upon  the 
same  evidence,  might  take  a  different  view  of  the  matter  from  that 
taken  V>y  the  magistrate. 

"  It  seems  to  me  that  it  is  a  (piestion  of  mixed  law  and  fact — 
mainly  indeed  of  fact — as  to  whetlier  the  facts  are  such  as  to  bring 
the  case  within  tlie  restriction  of  s.  3,  and  to  show  that  it  was  an 
offence  of  a  politiiial  character.  I  do  not  think  it  is  disputed,  or  that 
now  it  can  be  looked  upon  as  in  controversy,  that  there  was  at  this 
time  existing  in  Ticino  a  state  of  things  which  would  certainly  show 
that  there  was  more  than  a  mere  small  rising  of  a  few  people  against 
the  law  of  the  State.  I  think  it  is  clearly  made  out  by  the  facts  of 
this  case,  that  there  was  something  of  a  very  serious  character  going 
on — amounting,  I  should  go  so  far  as  to  say,  in  that  small  com- 
munity, to  a  state  of  war.  There  was  an  armed  body  of  men  who 
had  seized  arms  from  the  arsenal  of  the  State ;  they  were  rushing 
into  the  municipal  council  chamber  in  which  the  government  of  the 
State  used  to  assemble ;  they  demanded  admission;  admission   was 


168  TERRITORIAL   JURISDICTION.  [PART  I. 

refused ;  some  firing  took  place ;  the  outer  gate  was  broken  (Io\mi  ; 
and  I  think  it  also  appears  perfectly  plain  from  the  evidence  in  the 
case  that  Castioui  was  a  person  who  had  been  taking  part  in  that 
movement  at  a  much  earlier  stage.  He  was  an  active  party  in  the 
movement ;  lie  had  taken  part  in  the  binding  of  one  member  of  the 
government.  Some  time  before  he  arrived  with  his  pistol  in  his 
hand  at  the  seat  of  government,  he  had  gone  with  multitudes  of  men, 
armed  with  arms  from  the  arsenal,  in  order  to  attack  the  seat 
of  government,  and  I  think  it  must  be  taken  that  it  is  quite  clear 
that  from  the  very  first,  he  was  an  active  party,  one  of  the  rebellious 
party  who  was  acting  and  in  the  attack  against  the  government. 
Now,  that  being  so,  it  resolves  itself  mto  a  small  point,  depending 
on  the  evidence  which  Avas  taken  before  the  magistrate,  and  any- 
thing that  we  can  collect  from  the  evidence  that  we  have  before  us 
and  from  the  whole  circumstances  of  the  case. 

"  Before  dealing  with  the  evidence,  I  will  say  one  thing  about  the 
message  which  was  objected  to  and  which  was  read  after  a  slight 
discussion,  upon  the  understanding  that  we  were  not  going  to  use 
that  document  as  evidence  of  any  particular  fact,  but  that  it  would 
be  only  used  as  an  important  document  showing  that  the  govern- 
ment of  the  country  liad  themselves  looked  upon  this  as  a  serious 
political  rising,  and  a  serious  state  of  violence  by  a  very  large  body 
of  the  people  against  the  government.  I  mean  so  to  use  it,  and  I 
have  never  thought  of  using  it  in  any  other  way.  I  think  that  was 
the  understanding  upon  which  we  allowed  it  to  be  read,  and  I  feel 
that  I  am  not  justified  in  using  it  for  any  other  purpose.  Then  it  is 
reduced  to  the  question  of  whether,  upon  the  depositions  sent  over, 
and  upon  the  depositions  before  the  magistrate  and  upon  the  fresh 
facts,  if  there  be  any,  which  are  brought  before  us  on  the  afiidavits, 
we  think  that  this  was  an  act  done,  not  only  in  the  course  of  a  po- 
litical rising,  but  as  part  of  a  political  rising.  Here  I  must  say  at 
once  that  I  assent  entirely  to  the  observation  that  we  cannot  decide 
that  question  merely  by  considering  whether  the  act  done  at  the 
moment  at  which  it  was  done  was  a  wise  act  in  the  sense  of  being 
an  act  which  the  man  who  did  it  would  have  been  wise  in  doing  with 
tlie  view  of  promoting  the  cause  in  wliich  he  was  engaged.  I  do 
not  think  it  would  be  at  nil  consistent  with  tlie  real  meaning  of  the 
words  of  tlie  statute  if  we  were  to  attempt  so  to  limit  it.  I  mean, 
I  do  not  think  it  wc^uld  be  right  to  limit  it  in  the  way  suggested  by 
the  cross-examination  of  Bruni,  namely,  by  considering  whether  it 
was  necessary  at  tliat  time  that  the  act  should  be  done.  The  ques- 
tion really  is  whether,  upon  the  facts,  it  is  clear  that  the  man  was 
acting  as  one  of  a  number  of  persons  engaged  in  acts  of  violence  of 


CHAP.  II.]  IN   RE   CASTIONI.  IG'J 

ii  politic-ill  character  with  a  pohtical  object,  and  as  part  of  the 
poUtical  moveiueiit  and  rising  in  which  he  was  taking  p;irt.  Now, 
the  only  shadow  of  a  suggestion  of  evidence  to  the  contrary,  I 
tliink,  is  the  suggestion  wliieh  a[)[)ears  on  the  face  of  some  of 
the  documents  that  he  said  something  about  his  brother  having 
been  assassinated  some  years  before.  It  was  said  in  the  message, 
Avhich  I  have  already  said  I  do  not  rely  upon  as  a  statement  of  fact, 
that  he  did  at  the  time  he  fired  use  the  expression,  '  My  brother's 
death  cries  for  vengeance!'  That  is  in  the  document,  and  is  a 
statement  of  fact  which  I  do  not  rely  upon,  and  I  do  not  think  that 
I  am  justified  in  relying  upon  it,  though  if  I  commented  on  that,  I 
should  certainly  say  it  was  quite  as  capable  of  the  construction 
put  upon  it  by  Sir  Charles  Ilussell,  that  he  Avas  not  intending  to 
nmrder  Rossi,  of  whom  he  knew  nothing,  and  of  A\hose  connection 
with  any  injury  towards  his  brother  there  is  not  the  slightest  par- 
ticle of  evidence,  as  that  it  means  anything  of  the  kind  suggested. 
Then  it  amounts  to  a  very  little,  and  it  comes  to  discussion  as  to  the 
facts  of  the  case,  and  as  to  what  was  taking  place  at  the  exact  mo- 
ment at  which  the  shot  Avas  fired.  I  have  carefully  followed  the 
discussion  as  to  the  facts  of  the  case,  and  if  it  were  necessary  I 
could  go  through  them  all  one  by  one,  and  point  out,  I  tliink,  that, 
looking  at  the  way  in  which  that  evidence  was  given,  and  at  the 
evidence  itself,  there  is  nothing  in  my  judgment  to  displace  the 
view  which  I  take  of  the  case,  that  at  the  moment  at  which  Cast  ion  i 
tired  the  shot,  the  reasonable  presumption  is,  not  that  it  is  a  matter 
of  absolute  certainty  (we  cannot  be  absolutely  certain  about  anything 
as  to  men's  motives)  but  the  reasonable  assumption  is  that  he,  at 
the  moment  knowing  nothing  about  Rossi,  having  no  spite  or  ill- 
will  against  Rossi,  as  far  as  we  know,  fired  that  shot ;  that  he 
hred  it  thinking  it  would  advance,  and  that  it  was  an  act  Avhich  M'as 
in  furtherance  of,  and  done  intending  it  to  be  in  furtherance  of  the 
very  ol)ject  which  the  rising  had  taken  place  in  order  to  promote, 
and  to  get  rid  of  the  Government,  who,  he  might,  until  he  had  ab- 
solutely got  into  the  place,  have  supposed  were  resisting  the  en- 
trance of  the  people  to  that  place.  That,  I  think,  is  the  fair  and  rea- 
sonable presumption  to  draw  from  the  facts  of  the  case.  I  do  not 
know  that  it  is  necessary  to  give  any  opinion  as  to  the  exact  mo- 
ment when  the  shot  was  fired  ;  there  is  some  conflict  about  it.  There 
is  evidence  that  there  was  great  confusion ;  there  is  evidence  of 
shots  hred  after  the  shot  which  Castioni  fired ;  and  all  I  can  say  is, 
that  looking  at  it  as  a  question  of  fact,  I  have  come  to  the  coneln- 
sion  that  at  the  time  at  which  that  shot  was  fired  he  acted  in  the  fur- 
therance of  the  unlawful  rising  to  which  at  that  time  he  was  a  pariy, 


irO  TEIUMTOKIAL    JURISDICTION.  [PART  I. 

and  an  active  party — a  person  who  had  been  doing  active  work  from 
a  very  nuicli  earUer  period,  and  in  wliich  he  was  still  actively  en- 
gaged. That  being  so,  I  thuik  the  writ  ought  to  issue,  and  that  we 
should  be  acting  contrary  to  the  spirit  of  this  enactment,  and  to  the- 
fair  meaning  of  it,  if  we  were  to  allow  him  to  be  detained  in  cus- 
tody longer." 

Hawkins,  J.,  said,  among  other  things,  "  Now  what  is  the  meaning 
of  crime  of  a  political  character  ?  I  have  thought  over  this  matter 
very  much  indeed,  and  I  have  thought  whether  any  definition  can 
be  given  of  the  political  character  of  the  crime — I  mean  to  say,  in 
language  which  is  satisfactory.  I  have  found  none  at  all,  and  I  can 
imagine  for  myself  none  so  satisfactory,  and  to  my  mind  so  complete, 
as  that  which  I  find  in  a  work  which  I  have  now  before  me,  and  the 
language  of  which  for  the  purpose  of  my  present  judgment  I  en- 
tirely adopt,  and  that  is  the  expression  of  my  brother  Stephen  in  his 
History  of  the  Criminal  Law  of  England  in  vol.  ii.,  pp.  70,  71.  I  will 
not  do  more  than  refer  to  the  interpretations,  other  than  those  with 
which  he  agrees,  which  have  been  given  upon  this  expression, 
'  political  character  ' ;  but  I  adopt  his  definition  absolutely.  '  The 
third  meaning  which  may  be  given  to  the  words,  and  which  I  take 
to  be  the  true  meaning,  is  somewhat  more  complicated  than  either 
of  those  I  have  described.  An  act  often  falls  under  several  differ- 
ent definitions.  For  instance,  if  a  civil  war  were  to  take  place,  it 
would  be  high  treason  by  levying  war  against  the  Queen.  Every 
case  in  which  a  man  was  shot  in  action  would  be  murder.  When- 
ever a  house  was  burnt  for  military  purposes  arson  would  be  com- 
mitted. To  take  cattle,  etc.,  Ijy  re([uisition  would  be  robbery.  Ac- 
cording to  the  common  use  of  language,  however,  all  such  acts  would 
be  political  offences,  because  they  would  be  incidents  in  carrying  on 
a  civil  war.  I  think,  therefore,  that  the  expression  in  the  Extradi- 
tion Act  ought  (unless  some  better  interpretation  of  it  can  be 
suggested)  to  be  interpreted  to  mean  that  fugitive  criminals  are 
not  to  be  surrendered  for  extradition  crimes,  if  those  crimes  were 
incidental  to  and  formed  a  part  of  political  disturbances.  I  do  not 
wish  to  enter  into  details  beforehand  on  a  subject  which  might  at 
any  moment  come  under  judicial  consideration.'  The  question  has 
come  under  judicial  consideration,  and  having  had  the  opportunity 
before  this  case  arose  of  carefully  reading  and  considering  the  views 
of  my  learned  brother,  having  heard  all  that  can  be  said  upon  the 
subject,  I  adopt  his  language  as  the  definition  that  I  think  is  the 
most  perfect  to  be  found  or  capable  of  l)eing  given  as  to  what  is  the 
meaning  <jf  the  phrase  which  is  made  use  of  in  the  Extradition 
Act.  *  *  * 


CHAP.  II.]  IN    RE   CASTIONI.  171 

"  I  cannot  help  thinking  that  everyljody  knows  tliere  are  many 
acts  of  a  political  character  done  witliont  reason,  done  against  all 
reason  ;  hut  at  tlio  same  time,  one  cannot  look  too  liardly  and  weigh 
ill  golden  scales  the  acts  of  men  hot  in  their  political  excitement. 
We  know  that  in  heat  and  in  heated  blood  men  often  do  things  whicli 
are  against  and  contrary  to  reason;  but  none  the  less  an  act  of  this 
description  may  be  done  for  the  purpose  of  furthering  and  in  further- 
ance of  a  political  rising,  even  though  it  is  an  act  wliich  may  be  de- 
]ilored  and  lamented,  as  even  cruel  and  against  all  reason,  by  those 
who  can  calmly  reflect  upon  it  after  the  battle  is  over. 

"  For  the  reasons  I  have  expressed,  I  am  of  o[)inion  that  this  rule 
ought  to  be  made  absolute,  and  that  the  prisoner  ought  to  be  dis' 
charged."  ^ 

^Political  offenses: — "Most  codes  extend  their  definitions  of  treason  to  acts 
not  really  against  one's  country.  They  do  not  distinguish  between  acts  against 
the  Government  and  acts  against  the  oppressions  of  the  Government.  The  latter 
are  virtues,  yet  have  furnished  more  victim?  to  the  executioner  than  the  former  *  *  * 
The  unsuccessful  stragglers  against  tyranny  have  been  the  chief  martyrs  of  treason 
1  iws  in  all  countries.  *  *  *  Treasons,  then,  taking  the  simulated  with  the  real,  are 
sufficiently  punished  by  exile."  (Jefferson  to  Garmichael  and  Short,  11'J2.  1  Am. 
St.  Pap.  For.  Rel.,  258.) 

In  recent  years  there  has  been  much  discussion  as  to  the  nature  of  the  crime 
committed  in  the  assassination  of  the  head  of  a  government  and  of  other  public 
officials  ;  whether  it  is  to  be  put  upon  tlie  footing  of  or. Unary  murder,  or  whelher 
it  shall  be  classed  among  those  political  offences  which  arc  exempt  from  extradition 
proceedings.  Is  it  possible  to  make  a  distinction,  as  Mr.  Jefferson  suggests, 
between  acts  directed  against  tyranny,  and  those  of  a  mere  common-law  character  ? 
Some  such  distinction  lias  probably  influenced  statesmen  in  their  dealings  with  the 
question  of  extradition.  But  as  offences  of  this  class  have  become  more  common 
and  have  invaded  the  dominions  of  the  most  libei-al  governments,  public  opinion 
would  seem  to  be  undergoing  a  change  in  regard  to  them. 

Soon  after  the  assassination  of  President  Garfield,  the  United  States  Government 
entere  1  into  two  treaties  of  extradition — that  with  Belgium  of  1882,  and  that  with 
Luxembourg  of  1883 — in  which  it  is  stipulated  that  "  a:i  attempt  against  the  life 
of  the  head  of  a  foreign  government  or  against  that  of  any  nuunber  of  his  family, 
when  such  attempt  comprises  the  act  either  of  nuirder  or  assassination  or  of  i)ois- 
oning,  shall  not  be  considered  a  political  offence  or  an  a^t  connected  with  such  an 
offence."  An  extradition  treaty  between  the  United  States  and  Russia,  1893,  con- 
tains a  similar  clause. 

By  an  agreement  between  the  governments  of  Russia  and  Prussia  in  1888,  for 
the  basis  of  an  extradition  convention,  attem  >ts  against  the  life  of  the  Emperor  of 
Russia  or  the  m 'mbers  of  his  family  arj  to  b9  considered  as  extraditable  offences. 
And  further,  "  the  fact  that  the  crime  or  offence,  in  respect  Mdiereof  extradition 
is  demande  1,  has  been  committed  for  a  political  object,  shall  in  no  case  be  a  reason 
for  refusing  extradition."     (Lowe's  Life  of  Bismarck,  II.,  19.) 

On  this  subject,  see  Moore's  Extradition,,  I.,  303-320. 


172  TERKITOPvIAL   JUKI8DICTI0X.  frAKT  I, 


Section  15. — Jurisdiction  of  Offenses  Committed  Abroad. 


CUTTING'S  CASE,  1886. 
(Report  on  the  Cuttiny  Cane,  by  J.  B.  Moore,  1887.) 

May  the  courts  of  a  State  take  jurisdiction  iu  tlie  case  of  offenses  against  its 
citizens,  eoiumilted  by  foreigners  iu  foreign  countries  ? 

A.  K.  Cutting,  a  citizen  of  tlie  United  States,  was  arrested  in  Paso 
del  Xorte,  Mexico,  on  the  28d  of  June,  1886,  for  the  publication  iu 
Texas  of  a  libel  against  a  jMexican  citizen.  Cutting  had  been  for 
some  time  a  resident  of  Paso  del  Xorte,  engaged  in  editing  a  news- 
paper called  El  Centtnela,  in  a  recent  number  of  which  he  had 
reflected  upon  the  character  of  one  Medina,  a  Mexican,  who  proposed 
to  start  a  rival  newspaper  in  the  same  town.  For  this  publication 
Cutting  was,  at  the  instance  of  Medina,  arrested,  brought  before  a 
local  court,  and  required  to  sign  a  "  reconciliation,"  which  is  in  the 
nature  of  a  compromise  or  settlement  between  the  parties,  in  con- 
sideration of  which  the  party  who  feels  himself  aggrieved  abandons 
penal  proceedings.  Cutting  then  had  the  following  notice  inserted 
in  the  El  Paso  ITerald,  in  Texas  : 

"  To  Emigdio  Medma,  of  El  Paso  del  Xorte  : 

"  El  Paso,  Texas,  June  18th,  1886. 

"  In  a  late  issue  of  El  Centinela.,  published  in  Paso  del  Xorte,  3Iex- 
ico,  I  made  the  assertion  that  said  Emigdio  Medina  was  a  '  fraud ' 
and  that  the  SiKinish  newspaper  he  proposed  to  issue  in  Paso  del 
Xorte  was  a  scheme  to  swindle  advertisers,  etc.  This  morning  said 
Medina  took  the  matter  to  a  Mexican  court,  and  I  was  forced  to  sign 
a  reconciliation. 

"  Now  I  do  herebj^  reiterate  my  original  assertion  that  said  Emig- 
dio Medina  is  a  fraud  and  add  'dead  beat'  to  the  same.  Also  that 
his  taking  advantage  of  tlie  Mexican  law  and  forcing  me  to  a  'recon- 
ciliation '  was  contemptible  and  cowardly  and  in  keeping  with  the 
odorous  reputation  of  said  Emigdio  Medina. 

"  And  should  said  Medina  desire  American  satisfaction  for  this 
reiteration,  I  will  be  pleased  to  grant  him  all  he  may  desire,  at  any 
time,  in  any  manner. 

"A.  K.  Cutting." 


CHAP.  II.]  cutting's  case.  173 

Article  186  of  the  Mexican  Penal  Code,  under  wliicli  Cutting  was 
arrested,  is  as  follows  : 

Penal  offenses  committed  in  a  foreign  country  by  a  Mexican 
against  Mexicans  or  foreigners,  or  by  a  foreigner  against  Mexicans, 
may  be  punished  in  tlie  llepublic  (Mexico)  and  according  to  its  laws, 
subject  to  the  following  conditions  : 

I.  That  the  accused  be  in  the  Republic,  whither  he  iias  come 
voluntarily  or  has  been  l)rought  by  extradition  proceedings, 

II.  That,  if  the  offended  party  be  a  foreigner,  he  shall  have  made 
proper  legal  complaint, 

III.  That  the  accused  shall  not  have  been  definitively  tried  in 
the  country  where  the  offense  was  committed,  or,  if  tried,  that  he 
shall  not  have  been  acquitted,  included  in  an  amnesty,  or  pardoned. 

IV.  That  the  breach  of  law  of  which  he  is  accused  shall  have  the 
character  of  a  penal  offense,  both  in  the  country  in  which  it  was 
committed  and  in  the  Republic, 

V.  That  by  the  laws  of  the  Republic  the  offense  shall  be  subject 
to  a  severer  penalty  than  that  of  "  arresto  mayor"  (detention  for 
from  one  to  eleven  months). 

Notwithstanding  the  demand  of  the  United  States  (July  19th)  for 
the  "  instant  release  "  of  Cutting,  "now  unlawfully  imprisoned  at 
Paso  del  Xorte,"  the  court  at  that  place  proceeded  to  try  Cutting ; 
and  on  the  Gth  of  August  sentenced  him  to  serve  a  year  at  hard  labor 
and  pay  a  fine  of  6000.  On  appeal  to  the  supreme  court  of  Chihuahua, 
that  court  on  the  21st  of  August,  fully  approved  the  decision  of  the 
lower  court;  but  the  prisoner  w^as  released  on  the  ground  that  the 
plaintiff  having  withdrawn  from  the  prosecution  of  the  suit,  the 
principal  motive  of  its  continuance  had  ceased  to  exist,  it  appearing, 
moreover,  that  the  withdrawal  had  "  for  its  principal  object  tlie 
quieting  of  the  alarm  consequent  upon  his  complaint." 

The  government  of  the  United  States  then  demanded  an  indemnity, 
for  the  imprisonment  of  Cutting ;  and  further,  requested  of  Jlexico 
the  abolishment  or  modification  of  the  offensive  article  of  her  code. 
Mr.  IJayard,  Secretary  of  State,  wrote  :  "This  government  is  still 
compelled  to  deny,  what  it  denied  on  the  lOtli  of  July,  1880,  and 
what  the  Mexican  government  has  since  executively  and  judicially 
maintained,  that  a  citizen  of  the  United  States  can  be  held  under  the 
rules  of  International  Law  to  answer  in  Mexico  for  an  offense  com- 
mitted in  the  United  States,  simply  because  the  object  of  that  offense 
happened  to  be  a  citizen  of  Mexico.  The  government  of  ^Mexico  has 
endeavored  to  sustain  this  pretension  on  two  grounds:  First  that 
such  a  claim  is  justified  by  the  rules  of  International  Law  and  the 
positive  legislation  of  various  countries  ;  and,  secondly,  on  the  ground 


174  TEURITOKIAL   JURISDICTION.  [PART  I. 

that  such  a  claim  l)eing  made  in  the  legislation  of  ^fexico,  the  ques- 
tion is  one  solely  for  the  decision  of  the  Mexican  tribunals."  Again, 
"  there  is  no  principle  better  settled  than  that  the  penal  laws  of  a 
country  have  no  extraterritorial  force.  Each  may,  it  is  true,  provide^ 
for  the  punishment  of  its  own  citizens  for  acts  committed  by  them 
outside  of  its  territory ;  but  this  makes  the  penal  law  a  personal 
statute,  and  while  it  may  give  rise  to  inconvenience  and  injustice  in 
many  cases,  it  is  a  matter  in  which  no  other  government  has  the 
right  to  interfere.  To  say,  however,  that  the  penal  laws  of  a  coun- 
try can  bind  foreigners  and  regulate  their  conduct,  either  in  their 
ovm.  or  any  other  foreign  country,  is  to  assert  a  jurisdiction  over 
such  countries,  and  to  impair  their  independence.  Such  is  the  con- 
census  of  opinion  of  the  leading  authorities  on  International  Law  at 
the  present  day."  ^ 

'^  Jurisdiction  of  extraterritorinl  offenses. — The  position  of  the  government  of 
the  United  States  in  the  Cutting  case,  that  tlie  Mexican  law  giving  to  its  coin-ts 
the  jurisdiction  of  extraterritorial  offenses,  is  contrary  to  custom  and  international 
law,  and  that  the  principles  involved  in  it  are  practically  obsolete  in  practice,  would 
seem  not  to  be  borne  out  by  facts.  Aside  from  the  question  whether  the  common- 
law  doctrine  of  territorial  jurisdiction  is  the  more  expedient  practical  nile,  it  may 
at  least  be  said  that  it  is  by  no  means  so  universally  prevalent  as  to  warrant  the 
assertion  that  it  has  become  a  rule  of  5nternational  law.  Xot  only  are  there  many 
codes  which  go  quite  as  far  in  the  direction  of  extraterritorial  jurisdiction  as  that 
of  Mexico,  but  there  is  probably  not  a  state  which  adheres  strictly  to  the  territorial 
theoiy.  In  the  first  place,  practically,  all  states  punish  their  own  citizens  for  offenses 
of  one  kind  or  another  committed  in  foreign  countries.  Even  England  punishes 
not  only  for  treasonable  acts,  but  also  for  bigamy,  murder,  and  manslaughter  com- 
mitted abroad  by  her  subjects.  The  laws  of  the  United  States,  too,  provide  for  the 
punishment  of  certain  offenses  committed  abroad  by  their  citizens.  (Revised 
Statutes,  §  .5:^35;  and  see  acts  of  Aug.  IS,  IS^jG,  and  Feb.  25,  ISfiS). 

Secondly,  In  regard  to  foreigners,  there  is  a  large  number  of  codes  which  take 
jurisdiction  of  offenses  against  the  state  committed  by  them  in  foreign  states:  and 
a  lesser  number  which  go  further,  and  extend  their  jurisdiction  to  offenses  against 
individuals.  Of  this  number,  are  Austria,  Hungary,  Italy,  Norway,  Sweden, 
Russia,  Greece,  and  Brazil,  as  well  as  Mexico. 

Again,  there  are  many  cases  in  the  state  courts  of  the  United  States,  where  acts, 
done  by  persons  without  the  state  but  which  take  effect  within  the  state,  are  held 
to  be  done  by  persons  constructively  within  the  state,  and  jurisdiction  is  assumed. 
Thus,  if  a  man  in  one  state  fires  a  gun  over  the  boundary  line  and  kills  a  man  in 
another  state,  he  is  triable  in  the  latter  state.  (United  States  v.  Davis,  2  Sumner. 
482;  State  v,  Wyckoff,  2  Yroom,  X.  J.,  G8;  Com.  v.  Macloon,  101  Mass.,  1).  So. 
the  author  of  a  libel,  uttered  by  him  in  one  country,  and  published  by  others  in 
another  country,  is  triable  in  the  latter  country.  (Com,  v.  Blanding,  3  Pickering 
(Mass.),  .304;  B.  v.  Johnson,  7  East.,  m). 

The  Cutting  case  is  similar  to  that  of  Com.  v.  Blanding,  being  a  libel  uttered  in 
Texas,  but  being  circulated  and  having  its  effect  in  Mexico;  is  the  offense  different 
in  principle  from  that  of  wounding  a  man  in  one  state  by  firing  across  the  boundary 
from  another  state  ? 


CHAP,  n.]  Mcleod's  case. 


Section  16. — Extraterritorial  Acts  by  Order  of  the  State. 


McLEOD'S   CASE,  1837. 

{Ilalleck^s  International  Law,  I.,  420.) 

An  individual  is  not  to  be  lield  personally  responsible  for  acts  done  by  him  in  a 
foreign  State  by  order  of  his  government. 

"During  the  disturbances  in  Upper  Canada,  in  the  winter  of 
18.37,  a  steamboat  called  the  '  Caroline,' belonging  to  an  American 
owner,  had  been  actively  engaged  in  conveying  arms  and  stores 
from  the  American  side  of  the  river  to  the  Canadian  rebels,  who 
were  in  possession  of  Navy  Island,  and  had  been  boarded  in  the 
night  time  by  a  party  of  Canadian  Tioyalists,  while  she  was  lying 
within  the  jurisdiction  of  the  territory  of  Xew  York,  set  on  fire, 
and  sent  down  the  stream,  when  she  was  precipitated  over  the  falls 
of  Xiagara  and  dashed  to  pieces.  An  American  citizen,  named 
Durfee,  was  killed  in  the  affray,  and  several  otliers  wounded. 

"In  the  month  of  January.  1841,  a  British  subject  domiciled  in 
Canada,  named  Alexander  McLeod,  was  suddenly  arrested  while 
engaged  in  some  business,  within  the  territory  of  the  State  of  Xew 
York,  and  thrown  into  prison  by  tlie  authorities,  on  the  charge  of 
having  been  concerned  in  the  destruction  of  the  '  Caroline '  and  the 
alleged  murder  of  Durfee. 

"  McLeod  was,  in  the  month  of  May,  removed  by  habeas  corjnis 
from  Lockport  to  New  York,  in  the  custody  of  the  sheriff  of  Xiagara 
County.  Previously  to  this,  the  following  note,  dated  March  12, 
1841,  was  sent  by  Mr.  Fox  to  Mr.  Webster,  the  new  American 
Secretary  of  State  : — 

"'Her  Majesty's  Government  have  had  under  consideration  the 
subject  of  the  arrest  and  imprisonment  of  Alexander  McLeod,  on  a 
pretended  charge  of  arson  and  murder ;  and  I  am  directed  to  make 
known  to  the  Government  of  the  Ignited  States,  that  the  British 
Government  entirely  approved  of  the  course  pursued  by  him.     I  am 

Among  jurists  there  is  a  wide  difference  of  opinion  in  regard  to  the  merits  of  the 
two  systems — the  "territorial"  and  the  "personal"  theories  of  jurisdiction. 
(T.  E.  Holland:  Jurisprudence,  2d  Ed.,  p.  318;  F.  Wharton:  Philosophy  of 
Criminal  Law,  p.  309,  et  seq.;  L.  Bar  :  Private  International  Law,  Translation 
by  G.  R.  Gillespie,  p.  620  et  seq.;  Wharton's  Conflict  of  Law,  §  1810;  "  Ca^^e  of  \. 
K.  Cutting,  by  the  Minister  of  Foreign  Relations  of  the  Republic  of  Mexico, ""  1S£>6.) 


176  TERRITORIAL   JURISDICTION.  [PART  I. 

instructed  to  demand  formally,  and  in  the  name  of  the  British 
Government,  the  immediate  release  of  Alexander  McLeod,  for  the 
reason  that  the  transaction  was  of  a  public  character,  planned  and 
executed  by  persons  duly  authorized  by  the  Colonial  Government^ 
to  take  such  measures  as  might  be  necessary  for  protecting  the 
property  and  lives  of  Her  Majesty's  subjects  ;  and  being,  therefore, 
an  act  of  public  duty,  they  cannot  be  held  responsible  to  tlie  laws 
and  trilumals  of  any  foreign  country.' 

"3Ir.  Webster,  in  his  correspondence  with  3Ir.  Fox,  the  British 
minister,  said  that  '  Tlie  Government  of  the  United  States  enter- 
tains no  doubt  that,  after  the  avowal  of  the  transaction  as  a  puV)lic 
transaction,  authorized  and  undertaken  by  the  British  authorities, 
individuals  concerned  in  it  ought  not,  by  the  principles  of  public 
law  and  the  general  usage  of  civilized  States,  to  be  holden  personally 
responsible  in  the  ordinary''  tribunals  of  law  for  their  particii^ation 
in  it.  And  the  President  presumes  that  it  can  hardly  be  necessary 
to  say  that  the  American  people,  not  distrustful  of  their  ability  to 
redress  public  wrongs  by  public  means,  cannot  desire  the  punish- 
ment of  individuals  when  the  act  complained  of  is  declared  to  have 
been  an  act  of  government  itself.  *  *  * 

"'The  indictment  against  McLeod  is  pending  in  a  State  court,  but 
his  rights,  whatever  they  may  be,  are  no  less  safe,  it  is  to  be  pre- 
sumed, than  if  he  were  holden  to  answer  in  one  of  the  courts  of  this 
government.  He  demands  impunity  from  personal  responsibility, 
by  virtue  of  the  law  of  nations,  and  that  law,  in  civilized  States,  is 
to  be  respected  in  all  courts.' 

"  The  Supreme  Court  of  the  State  of  Xew  York  (25  Wend.  R., 
483),  held  that  a  subject  of  a  foreign  State  was  liable  to  be  pro- 
ceeded against  individually,  and  tried  on  an  indictment  in  the 
criminal  courts  for  arson  and  murder,  notwithstanding  the  acts  for 
which  the  indictment  was  made  had  been  subsequently  avowed  by 
his  government,  and  it,  consequently,  refused  to  discharge  him  from 
custody.  The  opinion  of  the  court  was  delivered  by  Mr.  Justice 
Cowen,  and  is  of  great  length.  So  far  as  the  question  of  national 
law  is  concerned,  the  opinion  rests  upon  the  proposition,  that  till 
war  is  declared  by  the  war-making  power,  the  officers  or  citizens  of 
a  foreign  government,  who  enter  our  territory,  are  as  completely 
obnoxious  to  punishment  by  our  law  as  if  they  had  been  born  and 
always  resided  in  this  country  ;  that  while  two  nations  are  at  peace 
with  each  other,  the  acts  of  hostility  by  individuals  must  be  regarded 
as  private  and  not  public  acts,  and  that  the  courts  will  hold  the  par- 
ties individually  responsible,  notwithstanding  the  avowal  of  such 
acts  by  their  government." 


CHAr.  11.]  THE    "CAKOLINE."  177 

[McLeod  was  therefore  put  upon  his  trial,  but  the  failure  of  the 
jur}'  to  convict  him,  on  the  evidence,  put  a  practical  termination  to 
tlie  matter.  But  to  prevent  tlie  recurrence  of  such  controversies  in 
the  future,  by  which  the  action  of  one  of  the  States  might  jeopardize 
the  foreign  relations  of  the  federal  government,  the  act  of  August 
•29,  1S42  (IT.  S.  Stat,  at  Large,  V.,  539),  was  passed  by  Congress  for 
bringing  such  cases,  by  writ  of  habeas  corpus,  under  the  cognizance 
of  the  courts  of  the  United  States  at  the  inception  of  the  proceed- 
ings.—P\  S.] 


Section  17. — Extbateeritorial  Acts  by  a  State,  ix  Self-defexse. 


THE  "CAROLINE,"  1837. 

(Wbartoyi's  Di'jest,  §  50  c.) 

A  violation  of  foreign  territory  niaj^  be  justified  on  the  CTOund  of  the  necessity 
of  self-defense. 

In  1837  an  insurrectionary  movement  was  made  in  U"pper  Canada, 
having  in  view  a  reform  in  the  Government  of  that  province.  A 
proclamation  had  been  issued  from  Xavy  Island,  in  the  Niagara 
River,  signed  by  William  Lyon  Mackenzie,  chairman  ^^?*o  tern,  of 
the  provisional  government,  calling  upon  the  reformers  to  make 
that  island  their  place  of  rendezvous,  and  to  aid  otherwise  in  revolu- 
tionizing the  province.  It  stated  that  the  command  of  the  forces 
was  given  to  General  Van  Rensselaer,  a  son  of  General  Solomon  Van 
Rensselaer,  of  Albany.  The  sympathy  manifested  by  some  citizens 
of  the  United  States  with  the  Canadian  insurgents,  induced  the 
governors  of  New  York  and  Vermont  to  issue  proclamations,  Avarn- 
ing  the  citizens  of  these  states  to  refrain  from  any  unlawful  acts 
within  the  territory  of  the  LTnited  States.  Notwithstandmg  these 
proclamations,  the  insurgents  were  joined  by  citizens  of  the  L'^'nited 
States;  whence  also  they  received  arms  and  munitions  of  war. 
The  steamboat  Caroline  owned  by  an  American  citizen,  Avas  said  to 
be  engaged  in  transporting  recruits  and  supplies  to  the  rendezvous 
on  Xavy  Island ;  and  it  was  further  presumed  that  this  boat  would 
be  the  means  of  transferring  the  expedition  to  the  Canadian  shore. 
Under  these  circumstances,  the  British  officer  in  command  deter- 
mined to  destroy  the  Caroline.  A  force  was  accordingly  despatched 
tor  that  purpose  on  the  night  of  the  29th  of  December,  1837.  Not 
findmg  her  at  Navy  Island,  the  party  proceeded  to  her  moorings  at 
12 


1T8  TERRITORIAL   JURISDICTION.  [PART  I. 

Sclilosser  on  the  American  shore,  attacked  the  crew,  one  of  Avliom 
was  killed,  took  the  boat  into  the  stream  and  left  it  to  be  carried  over 
Xiagara  Falls.  A  proclamation  was  promptly  issued  (January  5, 
1838),  by  President  Van  Buren,  enjoining  on  all  citizens  obedience 
to  the  laws  and  warning  them  that  the  violation  of  our  neutrality 
would  -subject  the  offenders  to  punishment.  General  Scott  was 
forthwith  ordered  to  the  Canadian  frontier  to  assume  the  military 
command  there;  and  requisitions  were  made  upon  the  Governors  of 
New  York  and  Vermont  for  such  militia  force  as  General  Scott 
might  require  for  the  defense  of  the  frontier. 

On  the  other  hand,  the  act  was  made  a  subject  of  complaint  by 
the  American  government,  on  the  ground  of  a  violation  of  territory ; 
but  it  was  justified  by  Great  Britain  on  the  ground  of  the  necessity 
of  self-preservation. 

The  question  remained  unsettled  till  1842,  when  ^Nlr.  "Webster,  in 
correspondence  -uith  Lord  Ashburton,  contended,  that  for  such  an 
infringement  of  territorial  rights,  the  British  government  must 
show  "  a  necessity  of  self-defense,  instant,  overwhelming,  and  leaving 
no  choice  of  means  and  no  moment  for  deliberation  ; "  and  it  should 
further  appear  that  the  Canadian  authorities,  in  acting  under  this 
exigence,  "  did  nothing  unreasonable  or  excessive,  since  the  act,  justi- 
fied by  the  necessity  of  self-defense,  must  be  limited  by  that  neces- 
sity and  kept  clearly  within  it."  Lord  Ashburton  admitted  the 
correctness  of  Mr.  Webster's  doctrine,  and  asserted  that  the  destruc- 
tion of  the  Caroline  came  fully  within  its  limits :  and,  though  the 
act  was  justifiable,  an  apology  for  the  violation  of  territory  should 
have  been  made  at  the  time.  This  was  accepted  by  the  L^nited 
States  as  satisfactory,  and  the  subject  was  allowed  to  drop.  (Par- 
liamentary Papers,  184.3,  Ixi.  46—51 ;  "Wharton's  Digest  of  Interna- 
tional Law,  I.,  §  50  c ;  Benton's  Thirty  Years  in  the  Senate,  IL,  289, 
45.5.) 

SEIZUPtE  OF  SAIXT  MxVRirS. 
( 1  Wharton'' a  Li'/est,  224.) 

Necessity  justifies  an  invasion  of  foreign  territory  so  as  to  subdue  an  expected 
assailant. 

In  181.5,  under  orders  of  Mr.  Monroe,  measures  were  taken  for  the 
destruction  of  a  fort  held  by  outlaws  of  all  kinds  on  the  Appalachi- 
cola  River,  then  within  the  Spanish  territory,  from  which  parties 
had  gone  forth  to  pillage  within  the  L^nited  States.  Tlie  governor 
of  Pensacola  had  been  called  upon  to  suppress  the  evil  and  punish 


CHAP,  n.]  THE   "  Vir.GT>'IUS."  170 

the  marauders,  but  had  refused;  and  on  his  refusal,  the  Spanish 
territory  was  entered,  and  the  fort  attacked  and  destroyed  on  the 
ground  of  necessity. 

General  Jackson  put  his  seizure  and  occupation  of  the  fort  at  Saint 
^Mark's,  which  was  within  Spanish  territory,  expressly  on  the  ground 
of  necessity.  In  his  letter  to  tlie  governor  of  Saint  Mark's,  he  de- 
clared that  the  Spanish  garrison,  from  its  feebleness,  would  be  un- 
able to  resist  the  attacks  of  Indians  who  intended  to  make  it  a  base 
for  their  operations  against  the  United  States. 

"  To  prevent  the  recurrence  of  so  gross  a  violation  of  neutrality, 
and  to  exclude  our  savage  enemies  from  so  strong  a  hold  as  Saint 
^Mark's,  I  deem  it  expedient  to  garrison  that  fortress  with  American 
troops  until  the  close  of  the  present  war.  This  measure  is  justifialjle 
on  the  immutable  principles  of  self-defense,  and  cannot  but  be  satis- 
factory, under  existing  circumstances,  to  his  Catholic  Majesty  the 
King  of  Spain.  Under  existing  treaties  between  the  two  govern- 
ments, the  King  of  Spain  is  bound  to  preserve  in  peace  with  the 
citizens  of  the  United  States,  not  only  his  own  subjects,  but  all 
Indian  tribes  residing  within  his  territory.  AYhen  called  upon  to 
fulfill  that  part  of  the  treaty  in  relation  to  a  savage  tribe  who  have 
long  depredated  with  impunity  on  the  American  frontier,  incompe- 
tency is  alleged,  with  an  acknowledgment  that  the  same  tribe  have 
acted  in  open  hostility  to  the  laws,  and  invaded  the  rights  of  his 
Catholic  ]\Iajesty.  As  a  mutual  enemy,  therefore,  it  is  expected  that 
every  facility  will  be  afforded  by  the  agents  of  the  King  of  Spain  to 
chastise  these  lawless  and  inhuman  savages.  In  this  liglit  is  the 
possession  of  Saint  Mark's  by  the  American  forces  to  be  viewed."  ^ 


THE    "  YIRGIXIUS,"  1873. 

{U.  S.  Foreign  Relations,  1874;  Pari.  Papers,  1874,  vol.  76.) 

Seizure,  on  the  high  seas,  of  a  vessel  carrying  a  foreign  flag,  on  the  ground  of 
self-defense. 

The  Vtrgimus  was  registered  in  the  United  States  and  carried 
the  American  flag;  but,  as  it  eventually  appeared,  she  was  reall.y  the 
property  of  certain  Cuban  insurgents,  and  was  employed  in  aid  of  the 
rebellion  in  Cuba.  On  the  9th  of  July,  1873,  she  arrived  at  Kings- 
ton, Jamaica,  and  on  the  23d  of  October  she  cleared  ostensibly  for 

1  The  seizure  of  Amelia  Island,  in  1817,  by  authority  of  the  government  of  the 
United  States,  was  put  upon  similar  ground.     ( 1  Wharton's  Digest,  §  50  a.) 


180  TEEKITOUIAL   JURISDICTION.  [PAET  I. 

Limon  Bay  in  Costa  Rica,  but  really  for  the  coast  of  Cuba.  Being 
chased  by  a  Spanish  war-ship,  she  put  into  Port-au-Prince,  Ilayti. 
Thence  she  proceeded  again  to  the  coast  of  Cuba,  and  was  again 
chased  by  a  Spanish  war-vessel  the  Tornado  and  was  captured  ten 
or  fifteen  miles  from  the  coast  of  Jamaica,  on  the  31st  of  October. 
She  was  taken  to  Santiago  de  Cuba,  where  a  court  was  assembled 
for  the  trial  of  the  persons  found  on  board — 155  in  number:  Of  these 
four  were  tried  on  the  od  of  November,  and  shot  on  the  4th,  thiity- 
seven  on  the  7th,  and  sixteen  on  the  8th.  Among  those  executed 
were  nine  Americans  and  sixteen  British  subjects. 

The  government  of  the  United  States  supposing  that  its  rights  on 
the  high  seas  had  been  violated,  demanded  reparation.  And  by  an 
agreement  of  the  •29th  of  November,  Spain  stipulated  to  restore  the 
Virginiits  and  the  survivors  of  the  passengers  and  crew,  and  to 
salute  the  flag  of  the  United  States  on  the  25th  of  December  follow- 
ing, unless  Spain  should  in  the  meantime  prove  that  the  vessel  was 
not  entitled  to  carry  said  flag.  The  matter  was  submitted  to  the 
Attorney-General  of  the  United  States,  who,  after  careful  examina- 
tion, reported  on  the  12th  of  December,  that  the  registry  of  the 
Virr/imus  was  fraudulent,  and  that  she  had  therefore  no  right  to 
carry  the  American  flag.  But  he  added,  "  I  am  also  of  opinion  that 
she  was  as  much  exempt  from  interference  on  the  high  seas  by  any 
other  power,  on  that  ground,  as  though  she  had  been  lawfully 
registered.  Spain,  no  doubt,  has  a  right  to  capture  a  vessel,  witli  an 
American  register,  and  carrying  the  American  flag,  found  in  her 
own  waters  assisting,  or  endeavoring  to  assist,  the  insurrection  in 
Cuba,  but  she  has  no  right  to  capture  such  a  vessel  on  the  high  seas 
upon  an  apprehension  that,  in  violation  of  the  neutrality  or  naviga- 
tion laws  of  the  United  States,  she  was  on  her  way  to  assist  said 
rebellion.  Spain  may  defend  her  territory  and  people  from  the 
hostile  attacks  of  what  is,  or  appears  to  be  an  American  vessel ;  but 
she  has  no  jurisdiction  whatever  over  the  question  as  to  whether  or 
not  such  vessel  is  on  the  high  seas  in  violation  of  any  law  of  the 
United  States."  Spain  having  proved  her  point,  the  salute  to  the  flag 
was  dispensed  with.  The  vessel  was  delivered  to  the  United  States 
authorities  on  the  16th  of  December,  1873;  but  on  her  way  north, 
sank,  off  Cape  Fear,  on  the  2Gth  of  that  month. 

Both  the  United  States  and  England  demanded  reparation  for  the 
persons  of  their  respective  nationalities  aaIio  had  Ijeen  executed  by 
the  captors  of  the  Virr/inius;  and  this  Spain  eventually  agreed  to 
make.  Even  assuming  that  the  vessel  was  lawfully  seized,  it  was 
contended  that  there  could  be  no  justification  of  the  summary  execu- 
tion of  foreigners  by  order  of  a  drum-head  court-martial. 


V^HAP.  II.]  NEW   ORLEANS    KIOT.  181 

The  position  of  the  Attorney-General,  that  Spain  had  no  riglit  to 
capture  such  a  vessel  on  the  high  seas,  etc.,  has  called  forth  niucli 
adverse  criticism.  Both  Woolsey  and  Dana  justilicd  the  capture  at 
the  time.  "  Tlie  register  of  a  foreign  nation,"  said  Dana,  "  is  not, 
and  by  tlie  law  of  nations  is  not  recognized  as  being,  a  national 
voucher  and  guaranty  of  national  character  to  all  the  world,  and 
nations  having  cause  to  arrest  a  vessel,  would  go  beliind  sucli  a 
document  to  ascertain  the  jurisdictional  fact  which  gives  character 
to  the  document,  and  not  the  document  to  the  fact."  It  was  the 
duty  of  the  Spanish  captain,  says  Woolsey,  to  defend  the  coasts  of 
Cuba  against  a  vessel  which  was  known  to  be  under  the  control  of 
the  insurgents,  for  which  he  had  been  on  the  lookout,  and  against 
whicli  the  only  effectual  security  was  capture  on  the  high  seas. 
( Woolsey 's  International  Law,  6th  Ed.,  pp.  868,  369). 

In  a  pamphlet  on  the  "  Case  of  the  F^V(/^/^^■^<s,"  Mr.  George  Ticii^i^    jGv^cn- 
Curtis  took  similar  ground.     "  We  rest  the  seizure  of  this  vessel,"  ' 

he  says,  "on  the  great  right  of  self-defense,  whicii,  springing  from 
the  law  of  nature,  is  as  thoroughly  incorporated  into  the  law  of 
nations  as  any  right  can  be," 


Section  18. — Injury  to  Foreigners  by  Mob  Violence. 


NEW  ORLEANS  RIOT,  1851. 

(2  Wharton's  Diyest,  600.) 

A  State  is  not  responsible  for  injuries  to  aliens,  through  civil  commotions  or  mob 
violence  which  it  is  unable  to  control. 

On  the  receipt  of  intelligence  from  Havana,  in  18.51,  of  the  sum- 
mary execution  in  Cuba  of  a  number  of  American  citizens,  who  had 
accompanied  Lopez  on  his  filibustering  expedition  to  that  island, 
riots  immediately  took  place  in  New  Orleans  and  Key  West,  directed 
against  the  Spanish  residents  of  those  cities.  The  Spanish  consulate 
in  New  Orleans  was  attacked ;  and  much  injury  was  done  to  per- 
sons and  property.  For  these  injuries,  the  Spanish  government 
demanded  reparation  from  the  government  of  the  L^nited  States.  To 
these  demands,  Mr.  Webster,  Secretary  of  State,  replied,  November 
13,  1851,  as  folio ws:— 

"The  assembling  of  mobs  happens  in  all  countries ;  popular  vio- 
lences occasionally  break  out  everywhere,  setting  law  at  defiance, 
trampling  on  the  rights  of  citizens  and  private  men,  and  sometimes 


182  TEiailTOItlAL   JUKISDICTIOX.  [rART  I. 

on  those  of  public  officers,  and  the  agents  of  foreign  goA^ernnients, 
especialh'  entitled  to  protection.  In  these  cases  public  faith  and  na- 
tional honor  require,  not  only  that  such  outrages  should  be  disavowed, 
but  also  that  the  perpeti-ators  of  them  should  be  punished  wherever 
it  is  possible  to  bring  them  to  justice ;  and,  further,  that  full  satisfac- 
tion should  be  made  in  cases  in  which  a  duty  to  that  effect  rests  with 
the  government,  according  to  the  general  principles  of  law,  public 
faith,  and  the  obligation  of  treaties.  Mr.  Calderon  thinks  that  the 
enormity  of  this  act  of  popular  violence  is  heightened  by  its  insult 
to  the  flag  of  Spain.  The  government  of  the  United  States  Avould 
earnestly  deprecate  any  indignity  offered  in  this  country  in  time  of 
peace  to  the  flag  of  a  nation  so  ancient,  so  respectable,  so  renowned 
as  Spain. 

"  It  appears,  however,  that  in  point  of  fact  no  flag  was  actually 
flying  or  publicly  exhibited  when  the  outrage  took  place ;  but  this 
can  make  no  difference  in  regsird  to  the  real  nature  of  the  offense  or 
its  enormity.  The  persons  composing  the  mob  knew  that  they  were 
offering  insult  and  injury  to  an  officer  of  Her  Catholic  Majesty,  resid- 
ing in  the  United  States  under  the  sanction  of  laws  and  treaties ; 
and  therefore  their  conduct  admits  of  no  justification.  Nevertheless, 
3Ir.  Calderon  and  his  government  are  aware  that  recent  mtelligence 
had  then  been  received  from  Havana,  not  a  little  calculated  to  excite 
popular  feeling  in  a  great  city,  and  to  lead  to  popular  excesses.  If 
this  be  no  justification,  as  it  certainly  is  none,  it  may  still  be  taken 
into  view,  and  reg-arded  as  showing  that  the  outrage,  however  fla- 
grant, was  committed  in  the  heat  of  blood,  and  not  in  pursuance  of 
any  predetermined  plan  or  purpose  of  injury  or  insult.  *  *  * 

"  While  this  government  has  manifested  a  willingness  and  deter- 
mination to  perform  every  duty  which  one  friendly  nation  has  a  right 
to  expect  from  another,  in  cases  of  this  kind,  it  supposes  that  the  rights 
of  the  Spanish  consul,  a  public  officer  residing  here  under  the  protec- 
tion of  the  United  States  government,  are  quite  different  from  those 
of  the  Spanish  subjects  who  have  come  into  the  country  to  mingle 
with  our  own  citizens,  and  here  to  pursue  their  private  business  and 
objects.  The  former  may  claim  special  indemnit}^  the  latter  are  en- 
titled to  such  protection  as  is  afforded  to  our  own  citizens.  While, 
therefore,  the  losses  of  individuals,  private  Spanish  subjects,  are 
greatly  to  be  regretted,  yet  it  is  understood  that  many  American 
citizens  suffered  equal  losses  from  the  same  cause.  And  these  pri- 
vate individuals,  subjects  of  Her  Catholic  IMajesty,  coming  volun- 
tarily to  reside  in  the  United  States,  have  certainly  no  cause  of  com- 
plaint, if  they  are  protected  by  the  same  law  and  the  same  adminis- 
tration of  law,  as  native  born  citizens  of  this  country. 


CHAP.  U.]  NEW   ORLEANS    11  LOT.  183 

"  They  have  in  fact  some  advantages  over  the  citizens  of  the  State 
in  whicli  tliey  lia^jpen  to  be,  inasmuch  as  they  are  enabled,  until  they 
become  citizens  themselves,  to  prosecute  for  any  hijuries  done  to  their 
persons  or  property  in  the  courts  of  the  United  States,  or  the  State 
courts,  at  their  election. 

"  The  President  is  of  opinion,  as  already  stated,  that,  for  obvious 
reasons,  the  case  of  the  consul  is  different,  and  that  the  government 
of  the  United  States  should  provide  for  Mr.  Laborde  a  just  indem- 
nity ;  and  a  recommendation  to  that  effect  will  be  laid  before  Con- 
gress, at  an  early  period  of  its  approaching  session.  This  is  all  which 
it  is  in  his  power  to  do.  The  case  may  be  a  new  one,  but  the  Presi- 
dent being  of  opinion  that  Mr.  Laborde  otight  to  be  indenmifled,  has 
not  thought  it  necessary  to  search  for  precedents." 

It  would  appear,  by  the  resolution  of  Congress,  March  3,  1853, 
that  Congress  did  not  limit  the  indemnity  to  the  losses  incurred  by 
the  consul.     The  resoltition  is  as  follows  : — 

"  Resolved,  etc.,  That  the  President  of  the  United  States  be,  and 
is  hereby,  requested  to  cause  an  investigation  to  be  made  of  any  losses 
that  may  have  been  sustained  by  the  consul  of  Spain  and  other  per- 
sons residing  at  New  Orleans  or  at  Key  West  in  the  year  eighteen 
hundred  and  fifty-one,  and  who  at  that  time  were  subjects  of  the 
Queen  of  Spain,  by  the  violence  of  individuals  arising  out  of  intelli- 
gence then  recently  received  at  those  places  of  the  execution  of  certain 
persons  at  Havana,  in  Cttba,  by  the  Spanish  authorities  of  that  island, 
and  that  such  losses  so  ascertained  to  persons  at  that  time  subjects 
as  aforesaid,  on  the  certificate  of  the  Secretary  of  State  that  the  same 
are  proven  to  the  satisfaction  of  the  President,  together  with  the 
reasonable  costs  of  the  investigation,  shall  be  paid  to  those  entitled 
out  of  any  money  in  the  Treasury  not  otherwise  appropriated."  ^ 


1  The  New  Orleans  Mob,  1891. — The  ciuestions  growing  out  of  this  New  Orleans 
affair,  in  1891,  present  some  peculiar  features;  and  forcibly  illustrate  certain  defects, 
as  regards  the  conduct  of  foreign  relations,  in  the  federal  system  of  the  United 
States. 

The  Chief  of  Police  of  New  Orleans  liad  been  assassinated  in  a  most  dastardly 
manner:  and  strong  suspicions  of  complicity  in  the  murder  rested  on  the  members 
of  an  Italian  society  called  the  "  Mafia."  A  number  of  Italians  were  finally 
arrested  and  put  upon  their  trial,  l)ut  in  the  end  were  acquitted  by  the  jury.  Be- 
lieving that  the  jury  had  been  tampered  with,  and  that  there  was,  in  this  case,  a 
signal  failure  of  justice,  a  public  indignation  meeting  was  held,  which  was  attended 
by  tlie  better  class  of  citizens;  inflammatory  addresses  were  made,  and  measures 
apparently  adopted  to  take  the  matter  out  of  the  hands  of  the  court.  According'y, 
a  mob  assembled  the  next  morning,  and,  as  it  would  appear,  without  any  protest 
from  state  or  city  governments,  broke  open  the  jail  where  the  accused  were  still 
incarcerated,  and  shot  or  hanged  a  number  of  the  suspected  Italians.     Among  this 


CHAPTER  III. 

JUPtlSDICTIOX  OX  THE  HIGH  SEAS. 


Section  10. — Meeciiaxt  Vessels. 


THE  "  ATALAXTA,"  1856. 

(8  Ophu  Att-Gen.,  73.) 

Merchant  ships  on  the  high  seas  are  subject  to  the  jurisdiction  of  the  country 
of  their  flag. 

In  1856,  a  case  arose  in  reference  to  seamen,  supposed  not  to  be 
citizens  of  the  United  States,  who,  having  committed  a  mutiny  at 

number  were  several  wlio  were  not  naturalized,  and  were,  therefore,  still  citizens 
of  Italy. 

The  President,  by  the  Secretary  of  State,  expressed  regret  for  the  occurrence 
and  declared  his  purpose  to  lay  the  matter  before  Congress  at  its  next  session,  and 
to  recommend  that  an  indemnity  be  granted  to  the  families  of  the  murdered  men. 

The  Italian  government  was  not  satisfied  with  this  position  of  the  United  States, 
but  demanded  further  that  the  leaders  of  the  mob  be  criminally  prosecuted  and 
punished  according  to  law. 

With  this  demand  the  government  of  the  United  States  could  not  comply,  how- 
ever willing  it  might  be  to  do  so.  It  is  well  known  that  the  federal  courts  have  no 
common-law  jurisdiction  in  criminal  matters  ;  it  was  impossible,  therefore,  to 
institute  a  criminal  suit  against  these  persons  in  those  courts;  and  as  the  states  are 
wholly  indepentlent  of  the  Federal  Government  in  respect  of  such  jurisdiction,  it 
was  equally  impossible  to  compel  the  government  of  the  State  of  Louisiana  to 
institute  such  proceedings.  The  government  of  the  United  States  was  therefore 
quite  helpless  in  this  aspect  of  the  case,  and  could  only  listen  to  the  complaints  of 
Italy,  and  try  to  explain  to  her  statesmen  the  intricacies  of  the  United  States 
constitution. 

It  is  undoubtedly  within  the  competence  of  Congress  to  confer  upon  the  federal 
courts  jurisdiction  in  this  class  of  cases;  but  as  yet  it  has  not  been  done. 

In  regard  to  the  merits  of  this  case,  it  would  seem  that  the  United  States  should 
accept  the  responsibility  as  in  fact  they  have  done,  for  the  acts  of  the  mcb.  In 
the  first  place  these  persons  were  in  the  custody  of  the  state  government  and  for  the 
purposes  of  international  law,  in  that  of  the  national  government, — and  therefore 
entitled  to  special  protection.  In  the  second  place,  there  was  no  serious  attempt 
184 


CHAP.  III.]  CASE   OF    JOHN    ANDERSON.  18-'; 

sea,  on  board  of  the  American  vessel  Atalauta,  were  brought  back  in 
the  vessel  to  Marseilles,  where,  on  the  application  of  the  consul  of 
the  United  States,  they  were  received  and  imprisoned  by  the  local 
authorities  on  shore. 

Six  of  them  were  afterwards  on  his  application  taken  from  piison 
and  placed  on  board  the  Atalauta  for  conveyance  to  the  United 
States  under  charge  of  crime.  Then,  with  notice  to  the  consul,  but 
in  spite  of  his  remonstrances,  the  local  authorities  went  on  board  of 
the  Atalauta,  forcibly  resumed  possession  of  the  prisoners,  and  re- 
placed them  in  confinement  on  shore.  Mr.  Mason,  in  a  note  of  the 
27th  of  June,  1856,  says  : 

"  It  is  tlie  first  instance,  in  which  a  vessel  wearing  the  flag  of  the 
United  States,  lying  in  a  French  port,  or  a  French  ship  lying  in  a 
port  of  the  United  States  has,  since  the  date  of  the  treaty,  been 
visited  by  police  officers  without  the  authority  of  the  consul."  (MS. 
Department  of  State.)  The  correspondence  between  the  two  govern- 
ments having  been  submitted  to  the  Attorney-General  of  the  United 
States,  he  concurred  in  opinion  with  the  American  Minister,  "that 
the  local  authority  of  Marseilles  exceeded  its  lawful  po\Ner  in  sub- 
stance, as  well  as  in  form,  and  that  there  could  l)e  no  conflict  on  the 
part  of  France  with  other  powers  on  account  of  the  nationality  of 
the  prisoners,  for  they  were  always  in  the  constructive,  if  not  in 
the  actual,  custody  of  the  United  States." 


CASE  OF  .JOHN  ANDERSON". 

EvAETS,  Sec.  of  State,  to  Welcu,  July  11,  1879. 

(1  Wharton's  Digest,  128,  125.) 

An  offense  committed  on  an  American  merchant  vessel  on  the  higli  seas  is  ex- 
clusively within  tlie  jurisdiction  of  the  courts  of  the  United  States,  wliatever  be 
the  nationality  of  the  accused. 

"  I  enclose  herewith  a  copy  of  a  dispatch  recently  received  from 

on  the  part  of  the  proper  authorities  to  quell  the  riot;  and  it  is  generally  under- 
stood that  a  government  is  liable  internationally  for  injuries  done  to  "  alien  resi- 
dents by  a  mob  which  by  due  diligence  it  could  have  suppressed." 

The  Italian  government  eventually  withdrew  the  demand  for  the  punishment  of 
the  actors  in  the  affair,  and  accepted  a  money  indemnity  instead. 

For  other  cases  under  the  subject  of  this  section,  see  1  Wharton's  Digest,  pp. 
478,  482-486;  Calvo:  Droit  International,  4th  Ed.,  vol.  III.,  pp.  142-1.56.  And  see 
the  case  of  Don  Pacifico,  infra,  section  26,  in  which  the  claim  for  damages  was 
enforced  aijainst  Greece,  on  the  ground  that  it  was  impossible  to  obtain  justice 
through  the  ordinary  channels — tlie  courts. 


186  JURISDICTION    ON  THE   HIGH    SEAS.  [PART  I. 

A.  C.  Litelifield,  Esq.,  consul-general  of  the  United  States  at  Cal- 
cutta, in  relation  to  the  case  of  one  John  Anderson,  an  ordinary  sea- 
man on  board  the  American  bark  C.  0.  W/dtemore,  who,  it  appears, 
stabbed  and  killed  the  first  officer  of  the  ship  on  the  31st  of  January 
last,  while  that  vessel  was  on  her  way  from  Xew  York  to  Calcutta, 
sixteen  days  from  her  port  of  departure,  and  on  the  high  seas  in 
latitude  25°  35'  X.  and  longitude  35°  50'  W. 

"  You  will  perceive  that  the  consul-general  invoked  the  aid  of  the 
local  police  authorities  in  securing  the  safe  custody  of  the  accused, 
who  was  a  prisoner  of  the  United  States,  until  he  could  complete 
the  necessary  arrangements  for  sending  him  to  this  country  for  trial, 
against  whose  municipal  laws  only  he  was  accused  of  having  offend- 
ed, and  that  while  thus  in  the  temporaiy  custody  of  the  local  police, 
the  colonial  authorities  took  judicial  cognizance  of  the  matter, 
claiming,  under  the  advice  of  the  advocate-general  of  the  colony, 
that,  under  a  colonial  statute,  which  confers  upon  the  courts  of  the 
colony  jurisdiction  of  crimes  committed  by  a  British  subject  on  the 
high  seas,  even  though  such  crimes  be  committed  on  the  ship  of  a 
foreign  nation,  and  that  inasmuch  as  the  accused,  although  appear- 
ing on  the  ship's  articles  under  the  name  of  John  Anderson,  sub- 
ject of  Sweden,  had  declared  that  his  real  name  was  Alfred  Hussey, 
and  that  he  was  a  native  of  Liverpool  and  therefore  a  British  sub- 
ject, the  case  came  within  the  jurisdiction  of  those  courts. 

"  The  matter  is  now  believed  to  have  reached  that  pomt  in  the 
judicial  proceedings  where  effective  measures  forasserthig  the  juris- 
dictional rights  of  the  United  States  would  be  unavailable  in  this 
particular  case.  And  whilst  I  entertain  no  doubt  that  the  accused 
will  receive  as  fair  a  trial  in  the  high  court  of  Calcutta,  where  it  is 
understood  he  is  to  be  tried,  as  he  would  in  the  circuit  court  of  the 
United  States,  in  which  tribunal  he  would  be  arraigned  were  he  sent 
here  for  trial,  I  deem  it  proper,  at  the  same  time  to  instruct  you  to 
bring  the  question  to  the  attention  of  Tier  ^Majesty's  Government,  in 
order  to  have  it  distinctly  understood  tliat  this  case  cannot  be  admit- 
ted by  this  Government  as  a  precedent  for  any  similar  cases  that  may 
arise  in  the  future.  Xo  principle  of  pul)lic  law  is  better  understood 
nor  more  universally  recognized  than  that  merchant  vessels  on  the 
high  seas  are  under  the  jurisdiction  of  the  nation  to  which  they  be- 
long, and  that  as  to  common  crimes  committed  on  such  vessels  while 
on  the  high  seas,  the  competent  tribunals  of  the  vessels'  nation  have 
exclusive  jurisdiction  of  the  questions  of  trial  and  punishment  of  any 
person  thus  accused  of  the  commission  of  a  crime  against  its  muni- 
cipal laws ;  the  nationality  of  the  accused  can  have  no  more  to  do 
with  the  question  of  jurisdiction  than  it  would  had  he  committed 


CHAP.  III.]  REGINA   V.  LESLEY.  187 

the  same  crime  within  the  geographical  territorial  limits  of  the  na- 
tion against  whose  municipal  laws  he  offends.  The  merchant  shii», 
while  on  the  high  seas,  is,  as  the  ship  of  war  everywhere,  a  part  of 
tlie  territory  of  the  nation  to  which  she  belongs. 

''  I  pass  over  the  apparent  breach  of  comity  in  the  proceeding  of  the 
colonial  officials  as  being  rather  the  result  of  inadvertence  and  pos- 
sible misconception  on  the  part  of  the  Government  law  officer  of  the 
colony,  than  any  design  to  question  the  sovereignty  of  the  United 
States  in  this  or  cases  of  a  similar  nature." 

"  I  have  to  acknowledge  the  receipt  of  your  dispatch  Xo.  17,  of  the 
16th  ultimo,  inclosing  a  copy  of  the  correspondence  between  your 
legation  and  the  foreign  office  in  relation  to  the  case  of  John  Ander- 
son, who  was  tried  in  Calcutta  for  a  crime  alleged  to  have  been  com- 
mitted on  board  a  vessel  of  the  United  States  on  the  high  seas,  which 
correspondence  contains  an  expression  of  the  regret  of  Her  ^Majesty's 
Government  that  the  action  of  the  authorities  at  Calcutta  in  the  case 
in  question,  should  have  been  governed  by  a  view  of  the  law  which, 
in  the  opinion  of  Her  Majesty's  Government,  cannot  be  supported. 

"  In  reply  I  have  to  instruct  you  to  convey  to  the  proper  quarter 
an  expression  of  this  Department's  appreciation  of  the  candor  and 
goodwill  with  which  Her  Majesty's  Government  have  considered  this 
matter,  and  I  say,  moreover,  that  it  has  afforded  this  Government 
great  satisfaction  to  learn  that  the  action  of  the  authorities  of  Cal- 
cutta in  the  case  of  Anderson  is  to  be  attributed  to  a  misconception, 
and  not  to  any  design  to  question  the  jurisdiction  of  the  United 
States  in  that  or  any  similar  case."  (Mr.  Hay  to  Mr.  Lowell,  July  7, 
1S80). 

KEGINA  V.  LESLEY. 

Court  for  Crowx  Cases  Reserved,  1860. 

(BelVs  Croion  Ccuses,  220.) 

The  master  of  a  British  ship  may  detain  Chilian  outlaws  on  board  his  ship, 
against  their  will,  wliile  in  Chilian  waters,  by  agreement  with  the  Chilian  govern- 
ment; but  he  cannot  lawfully  transport  them  on,  the  high  seas  under  such  agree- 
ment. 

The  prosecutor  and  others  were  Chilians  who  were  banished  by 
their  government  from  Chili  to  England.  The  government  of  Chili 
hired  the  defendant  to  take  the  banished  men  to  England  in  his  ves- 
sel, then  lying  in  the  territorial  waters  of  Chili.  This  plan  was  car- 
ried out  and  now  the  defendant  is  prosecuted  for  false  iiiq)risonmenc 


188  JURISDICTION    ON   THE    HIGH    SKAS.  [I'AUT    1. 

Judgment,  by  Eule,  C.  J. : — "  In  this  case  the  question  is  whether 
a  conviction  for  false  imprisonment  can  be  sustained  upon  tlie  follow- 
ing facts.     (Stating  substantially  as  above.) 

"  Then,  can  the  conviction  be  sustained  for  that  which  was  done^ 
within  the  Chilian  waters  ?     We  answer  no. 

"  We  assume  that  in  Chili  the  act  of  the  government  to^^•ard  its 
subjects  was  lawful ;  and  although  an  English  ship  in  some  respects 
carries  with  her  the  laws  of  her  country  in  the  territorial  waters  of 
a  foreign  state,  yet  in  other  respects  she  is  subject  to  the  laws  of 
that  state  as  to  acts  done  to  the  subjects  thereof. 

"We  assume  that  the  government  could  justify  all  that  it  did 
within  its  own  territory,  and  we  think  it  follows  that  the  defendant 
can  justify  all  that  he  did  there  as  agent  for  the  government  and 
under  its  authority. 

"  In  Dohree  v.  Xapiei\  2  Bing.  X.  C,  781,  the  defendant,  on  behalf 
of  the  (Jueen  of  Portugal,  seized  the  plaintiff's  vessel  for  violating  a 
blockade  of  a  Portuguese  port  in  time  of  war.  The  plaintiff  brought 
trespass ;  and  judgment  was  for  the  defendant,  because  the  Queen 
of  Portugal,  in  her  own  territory,  had  a  right  to  seize  the  vessel  and 
to  employ  whom  she  would  to  make  the  seizure ;  and  therefore  the 
defendant,  though  an  Englishman  seizing  an  English  vessel,  could 
justify  the  act  under  the  employment  of  the  Queen. 

"  We  think  that  the  acts  of  the  defendant  in  Chili  became  lawful 
on  the  same  p]iiicii)le,  and  that  there  is  therefore  no  ground  for  the 
conviction, 

"  The  further  question  remains.  Can  the  conviction  be  sustained  for 
that  which  was  done  out  of  the  Chilian  territory  ?  and  we  think  it 
can. 

"  It  is  clear  that  an  English  ship  on  the  high  sea,  out  of  any  for- 
eign territory,  is  subject  to  the  laws  of  England  ;  and  persons,  whether 
foreign  or  English,  on  board  such  ship,  are  as  much  amenable  to 
English  law  as  they  would  be  on  English  soil. 

"  In  Refjina  v.  Suttler,  Dears.  &  Bell's  C.  C,  525,  this  principle  Avas 
acted  on,  so  as  to  make  the  })risoner,  a  foreigner,  responsible  for  mur- 
der on  board  an  English  ship  at  sea.  The  same  principle  has  been 
laid  down  by  foreign  writers  on  international  law  among  which  it  is 
enough  to  cite  Ortolan,  '  Sur  la  Diplomatic  de  la  ]Mer,'  liv.  'J,  cap.  1:5. 

"Tlie  merchant  shipping  Act,  17  &  18  Vict.  C.  1(»4,  §  "207,  makes  the 
master  and  seamen  of  a  British  ship  responsible  for  all  offences  against 
property  or  person  committed  on  the  sea  out  of  her  ^Majesty's  do- 
minions as  if  they  had  been  committed  within  the  jurisdiction  of  the 
admiralty  of  England. 

"  Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a 


CriAP.  ni.J  THE    "BELOEXLAND."  ISO 

false  iinprisonmeiit,  he  was  liable  to  be  convicted.  Now,  as  the  con- 
tract of  the  defendant  was  to  receive  the  prosecutor  and  the  others  as 
prisoners  on  board  his  ship  and  to  take  them,  without  their  consent, 
over  the  sea  to  England,  although  he  was  justified  in  first  receiving 
them  in  Chili,  yet  that  justification  ceased  when  he  passed  the  line 
of  Chilian  jurisdiction  and  after  that  it  was  a  wrong  which  was  inten- 
tionally planned  and  executed  in  pursuance  of  the  contract,  amounting 
in  law  to  a  false  imprisonment. 

"  It  may  be  that  transportation  to  England  is  lawful  by  the  law  of 
Chili,  and  that  a  Chilian  ship  might  so  lawfully  transport  Chilian 
subjects ;  but  for  an  English  ship,  the  laws  of  Chili,  out  of  the  state, 
are  powerless,  and  the  lawfulness  of  the  acts  must  be  tried  by  Eng- 
lish law. 

"  For  these  reasons,  to  the  extent  above  mentioned,  the  conviction 
is  affirmed." 


THE   "  BELGENLAND." 

Supbe:me  Court    of    the  United  States,  1884. 

(114  United  States  Reports,  355.) 

In  a  case  arising  out  of  tlie  collision  of  two  foreign  ships,  whicli  afterwards  arrive 
in  an  American  port,  tlie  admiralty  courts  of  the  United  States  may  take  jurisdiction. 

This  case  grew  out  of  a  collision  in  mid-ocean  between  the  Norwe- 
gian barque  Luna  and  the  Belgian  steamer  Bthjenhind,  in  consequence 
of  wliich  the  Luna  was  run  down  and  sunk.  Part  of  the  crew  of  the 
I^una,  including  the  captain,  were  rescued  by  the  steamer  and 
brought  to  Philadelphia.  The  captain  at  once  libelled  the  Beh/en- 
hiiid.  The  District  Court  decided  in  favor  of  the  libellant,  giving  a 
verdict  for  $50,000. 

The  Circuit  Court  confirmed  the  verdict,  and  the  libellee  now 
appeals  to  the  U.  S.  Supreme  Court.  Only  so  much  of  the  case  is 
given  as  refers  to  jurisdiction. 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court,  from  whicli 
the  following  extracts  are  taken  : 

"*  *  *  "We  shall  content  ourselves  with  inquiring  what  rule  is 
followed  by  Courts  of  Admiralty  in  dealing  with  maritime  causes 
arising  between  foreigners  and  others  on  the  high  seas. 

"  This  question  is  not  a  new  one  in  these  courts.  Sir  "William 
Scott  had  occasion  to  pass  upon  it  in  1799.  An  American  ship  Avas 
taken  by  the  French  on  a  voyage  from  Philadelphia  to  London,  and 
afterwards  rescued  by  her  crew,  carried  to  England,  and  libelled  for 


190  JURISDICTION    ON  THE    HIGH   SEAS.  [PART  I. 

salvage ;  and  the  court  entertained  jurisdiction.  The  crew,  however, 
though  engaged  in  the  American  ship,  were  British  born  subjects, 
and  weiglit  was  given  to  this  circumstance  in  the  disposition  of  tlie 
case.  The  judge,  however,  made  the  following  remarks  :  'But,  it  is 
asked,  if  they  were  American  seamen,  would  this  court  hold  plea  of 
their  demands  ?  It  may  be  time  enough  to  answer  this  question 
whenever  the  fact  occurs.  In  the  meantime,  I  will  say  without 
scruple  that  I  can  see  no  inconvenience  that  would  arise  if  a  British 
court  of  justice  was  to  hold  plea  in  such  a  case ;  or  conversely,  if 
American  courts  were  to  hold  pleas  of  this  nature  respecting  the 
merits  of  British  seamen  on  such  occasions.  For  salvage  is  a  ques- 
tion of  jus  gantium^  and  materially  different  from  the  question  of  a 
mariner's  contract,  which  is  a  creature  of  the  particular  institutions  of 
tlie  country,  to  be  applied  and  construed  and  explained  by  its  own 
particular  rules.  There  might  be  good  reason,  therefore,  for  this 
court  to  decline  to  interfere  in  such  cases  and  to  remit  them  to  their  own 
domestic  forum  ;  but  this  is  a  general  claim,  upon  the  general  ground 
of  quantum  meruit  to  be  governed  by  a  sound  discretion,  acting  on 
general  principles ;  and  I  can  see  no  reason  why  one  country  should 
be  afraid  to  trust  to  the  equity  of  the  courts  of  another  on  such  a 
question  of  such  a  nature,  so  to  be  determined.'  The  Two  Friends, 
1  Ch.  Rob.,  271,  278. 

"  The  law  has  become  settled  very  much  in  accord  with  these 
views.  That  was  a  case  of  salvage  ;  but  the  same  principles  would 
seem  to  apply  to  the  case  of  destroying  or  injuring  a  ship,  as  to  that 
of  saving  it.  Both,  when  acted  on  the  high  seas  between  persons  of 
different  nationalities,  come  within  the  domain  of  the  general  law  of 
nations,  or  communis  juris,  and  are  prima  facie  proper  subjects  of 
inquiry  in  any  court  of  admiralty  which  first  obtains  jurisdiction 
of  the  rescued  or  offending  ship  at  the  solicitation  in  justice  of  the 
meritorious,  or  injured,  parties. 

"  The  same  question  of  jurisdiction  arose  in  another  salvage  case 
which  came  before  this  court  in  1804,  Mason  v.  The  Blaireau,  2 
Cranch,  240. 

"  There  a  French  ship  was  saved  by  a  British  ship,  and  brought 
into  a  port  of  the  United  States  ;  and  the  question  of  jurisdiction 
was  raised  by  Mr.  Martin,  of  Maryland,  who,  however,  did  not  press 
the  point,  and  referred  to  the  observations  of  Sir  William  Scott  in 
The  Tiro  Friends.  Chief  Justice  Maiishall,  speaking  for  the  court, 
disposed  of  the  question  as  follows  :— '  A  doubt  has  been  suggested,' 
said  he,  'respecting  the  jurisdiction  of  the  court, and  upon  reference 
to  the  authorities,  the  point  does  not  appear  to  have  been  ever 
settled.     These  doubts  seem  rather  founded  on  the  idea  that  upon 


CHAr.  III.]  THE    ••  BELGENLAND."  191 

principles  of  general  policy,  this  court  ought  not  to  take  cognizance 
of  a  case  entirely  between  foreigners,  than  from  any  positive  inca- 
pacity to  do  so.  On  weighing  the  considerations  drawn  from  public 
convenience,  those  in  favor  of  the  jurisdiction  appear  much  to  over- 
balance those  against  it,  and  it  is  the  opinion  of  this  court,  that, 
whatever  doubts  may  exist  in  a  case  where  the  jurisdiction  may 
be  objected  to,  there  ought  to  be  none  where  the  parties  assent 
to  it.'  *  *  * 

"  In  the  absence  *  *  *  of  treaty  stipulations,  however,  the  case  of  for- 
eign seamen  is  undoubtedly  a  special  one,  when  they  sue  for  wages 
under  a  contract  which  is  generally  strict  in  its  character,  and  framed 
according  to  the  laws  of  the  country  to  which  the  ship  belongs ; 
framed  also  with  a  view  to  secure,  in  accordance  with  those  laws, 
the  rights  and  interests  of  the  ship-owners  as  well  as  those  of  master 
and  crew,  as  well  when  the  ship  is  abroad  as  wlien  she  is  at  home. 
Xor  is  this  special  character  of  the  case  entirely  absent  when  for- 
eign seamen  sue  the  master  of  their  ship  for  ill-treatment.  On 
general  principles  of  comity.  Admiralty  Courts  of  other  countries 
will  not  interfere  between  the  parties  in  such  cases  unless  there  is 
special  reason  for  doing  so,  and  will  require  the  foreign  consul  to  be 
notified,  and,  though  not  absolutely  bound  by,  will  always  ftay  due 
respect  to,  his  wishes  as  to  taking  jurisdiction. 

"  But,  although  the  courts  will  use  a  discretion  about  assuming 
jurisdiction  of  controversies  between  foreigners  in  cases  arising 
beyond  the  territorial  jurisdiction  of  the  country  to  which  the  courts 
belong,  yet  where  such  controversies  are  communis  juris,  that  is, 
where  they  arise  under  the  common  law  of  nations,  special  grounds 
should  appear  to  induce  the  court  to  deny  its  aid  to  a  foreign  suitor 
when  it  has  jurisdiction  of  the  ship  or  party  charged.  The  exist- 
ence of  jurisdiction  in  all  such  cases  is  beyond  dispute ;  the  only 
question  will  be,  whether  it  is  expedient  to  exercise  it.  *  *  * 

"  In  another  case.  Justice  Story  examined  the  subject  very  fully, 
and  came  to  the  conclusion  that,  wherever  there  is  a  maritime  lien 
on  the  ship,  an  Admiralty  Court  can  take  jurisdiction  on  the  prin- 
ciple of  the  civil  law,  that  in  proceedings  in  rem  the  proper  forum  is 
the  locus  rei  sitce.  He  added  :  '  With  reference,  therefore,  to  what 
may  be  deemed  the  public  law  of  Europe,  a  proceeding  in  rem  may 
well  be  maintained  in  our  courts  where  the  property  of  a  foreigner 
is  within  our  jurisdiction.  Nor  am  I  able  to  perceive  how  the  exer- 
cise of  such  judicial  authority  clashes  with  any  principles  of  public 
policy.' 

'"  That,  as  we  have  seen,  was  a  case  of  bottomry,  and  Justice  Story 
in  answer  to  the  objection  that  the  contract  might  have  been  entered 


192  JUEISUICTIOX   ON  THE   HIGH    SEAS.  [PART  I. 

into  in  reference  to  the  foreign  law,  after  showing  that  such  law 
might  be  proven  here,  said :  '  In  respect  to  maritime  contracts,  there 
is  still  less  reason  to  decline  the  jurisdiction,  for  in  almost  all 
civilized  countries  these  are  in  general  substantially  governed  by 
the  same  rules.' 

"Justice  Story's  decision  in  this  case  was  i-eferred  to  by  Dr. 
Lushington  with  strong  approbation  in  the  case  of  the  Goluhchick 
1  W .  Kob.,  143,  decided  in  1840,  and  was  adopted  as  authoiity  for  his 
taking  jurisdiction  in  that  case.  *  *  * 

"A  Danish  ship  was  sunk  by  a  Bremen  ship,  and  on  the  latter 
being  libelled,  the  respondents  entered  a  protest  against  the  jurisdic- 
tion of  the  court.  But  jurisdiction  was  retained  by  Dr.  Lushixgtox 
who,  amongst  other  things,  remarked :  '  An  alien  friend  is  entitled 
to  sue  (in  our  courts)  on  the  same  footing  as  a  British-born  subject, 
and  if  the  foreigner  in  this  case  had  been  resident  here,  and  the 
cause  of  action  had  originated  infra  corpus  comitatus,  no  objection 
could  have  been  taken.  Reference  being  made  to  the  observations 
of  Lord  Stowell  in  cases  of  seamen's  wages,  the  judge  said:  'AH 
questions  of  collision  are  (_]ViQ?,i\ox\^  communis  juris ;  but  in  case  of 
mariners'  wages,  whoever  engages  voluntarily  to  serve  on  board  a 
foreign  ship,  necessarily  undertakes  to  be  bound  by  the  law  of  the 
country  to  which  such  ship  belongs,  and  the  legality  of  his  claim 
must  be  tried  by  such  law.  One  of  the  most  important  distinctions, 
therefore,  respecting  cases  where  both  parties  are  foreigners  is, 
whether  the  case  be  communis  juris  or  not.  *  *  *  If  these  parties 
must  Avait  until  the  vessel  that  has  done  the  injury  returned  to  its 
own  country,  their  remedy  might  be  altogether  lost,  for  she  might 
never  return,  and,  if  she  did,  there  is  no  part  of  the  world  to  which 
they  might  not  be  sent  for  their  redress.' 

"  In  the  subsequent  case  of  the  Griefsioald,  1  Swabey,  430,  de- 
cided by  the  same  judge  in  1859,  which  arose  out  of  a  collision 
between  a  British  barque  and  a  Persian  ship  in  the  Dardanelles,  Dr. 
LusHiNGTox  said  :  '  In  cases  of  collision,  it  has  been  the  practice  of 
this  country,  and,  so  far  as  I  know,  of  the  European  States  and  of 
the  United  States  of  America,  to  allow  a  party  alleging  grievance 
by  a  collision  to  proceed  in  rem  against  the  ship  wherever  found, 
and  this  practice,  it  is  manifest,is  most  conducive  to  justice,  because 
in  very  many  cases  a  remedy  in  personam  would  be  impracticable.' 

"  The  subject  has  frequently  been  before  our  own  Admiralty 
Courts  of  original  jurisdiction,  and  there  has  been  but  one  opinion 
expressed,  namely,  that  they  have  jurisdiction  in  such  cases,  and 
that  they  will  exercise  it  unless  special  circumstances  exist  to  show 
that  justice  would  be  better  subserved  by  declining  it.  *  *  * 


CHAP.  III.]  CHUKCH    V.  ITUBBART.  193 

"  Indeed,  where  the  parties  are  not  only  foreigners,  but  belong  to 
different  nations,  and  the  injury  or  salvage  service  takes  place  on  the 
high  seas,  there  seems  to  be  no  good  reason  wliy  the  party  injured, 
or  doing  the  service,  should  ever  be  denied  justice  in  our  courts  ; 
neither  party  has  any  peculiar  claim  to  be  judged  by  the  municipal 
law  of  his  own  country,  since  the  case  is  pre-eminently  one  ronniiK- 
in's  Juris,  and  can  generally  be  more  impartially  and  satisfactorily 
adjudicated  by  the  court  of  a  third  nation  having  jurisdiction  of 
the  re.i  or  parties,  than  it  could  he  by  the  courts  of  either  of  the 
nations  to  which  the  litigants  belong.  As  Judge  Deady  very  justly 
said,  in  a  case  before  him  in  the  district  of  Oregon:  'The  parties 
cannot  be  remitted  to  a  home  forum,  for,  being  subjects  of  different 
governments,  there  is  no  such  tribunal.  Tlie  forum  which  is  com- 
mon to  them  both  by  the  J^^  (jentlum  is  any  court  of  admiralty 
within  the  reach  of  whose  process  they  may  both  be  found.'  Bern- 
hard  V.  Greene,  3  Sawyer,  230,  235. 

"As  to  the  law  which  should  be  applied  in  cases  between  parties, 
or  ships,  of  different  nationalties,  arising  on  the  high  seas,  not 
within  the  jurisdiction  of  any  nation,  there  can  be  no  doubt  that  it 
must  be  the  general  maritime  law,  as  understood  and  administered 
in  the  courts  of  the  country  iu  which  the  litigation  is  prosecuted." 


SErxiox  20. — Mu2ficiPAL  Seizitres  Beyond  the  Three-mile  Limit. 


CHURCH  V.  HUBBART. 

Supreme  Court  of  the  United  States,  1804. 
(2  CranoX  187.) 

Hclil.  that  a  State  may  seize  forei'^u  merchant  vessels  heyond  a  marine  league 
from  the  coast,  in  order  to  enforce  its  navigation  and  revenue  laws. 

While  the  American  vessel  Anrwa  was  between  four  and  five 
leagues  from  the  Brazilian  coast  she  was  seized  by  the  government 
of  Brazil  for  attempting  to  carry  on  illicit  trade  with  its  citizens. 

Upon  the  controversy  as  to  whether  the  government  of  Brazil  had 
a  right  to  seize  a  foreign  vessel  so  situated,  Maush.vix,  C.  J.,  saj^s  : 

"  *  *  *  As  a  general  principle,  the  nation  which  prohibits  com- 
mercial intercourse  with  its  colonies  must  be  supposed  to  adopt 
measures  to  make  that  prohibition  effectual.  They  must,  therefore, 
13 


194  JUUISDICTIOX    Oy   THE    HIGH    SEAS.  [PART  L 

be  supposed  to  seize  vessels  coming  into  their  harbors  or  hovering 
on  their  coasts  in  a  condition  to  trade.  *  *  * 

"  To  reason  from  the  extent  of  protection  a  nation  will  afford  to 
foreigners  to  the  extent  of  the  means  it  may  use  for  its  own  security 
does  not  seem  to  be  perfectly  correct.  It  is  opposed  by  principles 
M-hich  are  universally  acknowledged.  The  authority  of  a  nation 
within  its  own  territory  is  absolute  and  exclusive.  The  seizure  of  a 
vessel  within  the  range  of  its  cannon  by  a  foreign  force  is  an  inva- 
sion of  that  territory  and  is  a  hostile  act,  which  it  is  its  duty  to  repel. 
But  its  power  to  secure  itself  from  injury  may  certainly  be  exercised 
beyond  the  limits  of  its  territory.  Upon  this  principle  the  right  of 
a  belligerent  to  search  a  neutral  vessel  on  the  high  seas  for  contra- 
band of  war,  is  universally  admitted,  because  the  belligerent  has  a 
right  to  prevent  the  injury  done  to  himself  by  the  assistance  in- 
tended for  his  enemy ;  so,  too,  a  nation  has  a  right  to  prohibit  any 
commerce  with  its  colonies.  Any  attempt  to  violate  the  laws  made 
to  protect  this  right,  is  an  injury  to  itself  wliich  it  may  prevent,  and 
it  has  a  right  to  use  the  means  necessary  for  its  prevention.  These 
means  do  not  appear  to  be  limited  within  any  certain  marked  boun- 
daries, which  remain  the  same  at  all  times  and  in  all  situations.  *  *  * 

"  In  different  seas  and  on  different  coasts,  a  wider  or  more 
contracted  range,  in  which  to  exercise  the  vigilance  of  the  govern- 
ment of  the  country,  will  be  assented  to.  Thus  in  the  channel  *  *  * 
the  seizure  of  vessels  on  suspicion  of  attempting  an  illicit  trade 
must  necessarily  be  restricted  to  very  narrow  limits,  but  on  the 
coast  of  South  America,  seldom  frequented  by  vessels  but  for  the 
purpose  of  illicit  trade,  the  vigilance  of  the  government  may  be  ex- 
tended somewhat  further.  *  *  * 

"The  right  of  the  Spaniards  was  supposed  to  be  exercised  un- 
reasonably and  vexatiously,  but  it  never  was  contended  that  it  could 
only  be  exercised  within  the  range  of  the  cannon  from  their  bat- 
teries. Indeed,  the  right  given  to  our  own  revenue  cutters,  to  visit 
vessels  four  leagues  from  our  coast,  is  a  declaration  that  in  the 
opinion  of  the  American  government,  no  such  principle  as  that  con- 
tended for,  has  a  real  existence."  ^ 

1  yir.  Dana,  in  speaking  of  this  decision  (Dana's  A^Hieaton,  p.  259,  note),  says,  as 
to  tlie  assertion  that  the  seizure  of  a  vessel  four  leagues  from  the  coast  does  not 
render  the  seizure  invalid,  "this  remark  must  now  be  treated  as  an  unwarranted 
admission.  *  *  *  It  maj'be  said  that  the  principle  is  settled,  that  municipal  seiz- 
ures cannot  be  made,  for  any  purpose,  beyond  territorial  waters.  It  is  also  settled, 
that  the  limit  of  these  waters  is,  in  the  absence  of  treaty,  the  marine  league  or  the 
cannon-shot.  It  cannot  now  be  successfully  maintained,  eitlier  that  municipal 
visits  and  search  may  be  made  beyond  the  territorial  waters  for  special  purposes, 
or  that  there  are  different  bounds  of  that  territory  for  different  objects.  *  *  *  In 


CHAP,  ni.]  OPINION   OF   Sill   LEOLINE   JENKINS.  195 


Section  21. — Piracy. 


OPINION  OF  SIR  LEOLINE  JENKINS. 

Charge  to  the  Jury,  1GG8. 

{Life  of  Sir  Leollne  Jenkins,  I.,  80.) 
Definition  and  cliaracter  of  Piracy. 

"  There  are  some  sorts  of  felonies  and  offences,  which  cannot  be 
committed  anywhere  else  but  upon  the  sea,  within  the  jurisdiction 
of  the  Admiralty.  These  I  shall  insist  upon  a  little  more  partieu- 
hirly,  and  the  chiefest  in  this  kind  is  piracy, 

"  You  are  therefore  to  inquire  of  all  Pirates  and  sea-rovers  ;  they 
are  in  the  eye  of  the  law  hostes  humani  generis,  enemies  not  of  one 
nation  or  of  one  sort  of  people  only,  but  of  all  mankind.  They  are 
outlawed,  as  I  may  say,  by  the  laws  of  all  nations,  that  is,  out  of 
the  protection  of  all  princes  and  of  all  laws  whatsoever.  Everybody 
is  commissioned,  and  is  to  be  armed  against  them,  as  against  rebels 
and  traitors,  to  subdue  and  to  root  them  out. 

"That  which  is  called  robbing  upon  the  highway,  the  same  being 
done  upon  the  water  is  called  piracy.     Now  robbery,  as  'tis  dis- 

the  earlier  cases,  the  courts  were  not  strict  as  to  standards  of  distance,  where  no 
foreign  powers  intervened  in  the  causes.  In  later  times,  it  is  safe  to  infer  that 
judicial  as  well  as  political  tribunals  will  insist  on  a  line  of  marine  territorial  juris- 
diction for  the  exercise  of  force  on  foreign  vessels  in  time  of  peace  for  ail  purposes 
alike." 

There  still  stands  upon  tlie  Statute  Boole  of  the  United  States  a  law  passed  in 
1799  autliorizing  their  revenue  officers  to  stop  and  visit  foreign  vessels  four  leagues 
from  the  coast.  The  British  "  Hovering  Act,"  passed  in  l7o4,  and  which  doubtless 
suggested  the  American  Act,  contained  a  similar  provision.  But  this,  says  :Mr. 
Boyd  (Boyd's  Wheaton,  p.  241),  has  long  since  been  repealed.  "  The  present  cus- 
toms' legislation  makes  a  distinction  as  regards  the  extent  of  jurisdiction  claimed 
for  revenue  purposes,  between  ships  belonging  to  British  subjects  and  ships  be- 
longing to  foreigners."  There  is  no  longer  any  authority  under  English  laws  to 
visit  a  foreign  vessel  beyond  the  three-mile  limit.  (See  Customs  Consolidations 
Act,  1870,  Sec.  1.34.) 

See  further  on  this  subject,  the  case  of  7?o,se  v.  Hfmebj,  1808,  4  Cranch,  241,  in 
which  the  Supreme  Court  of  the  United  States  held  that  a  seizure,  under  customs' 
regulations,  of  a  foreign  vessel  beyond  the  territorial  waters  of  a  State  was  not 
valid.    See  also,  the  case  of  Hudson  v.  Guestier,  1810,  G  Cranch.  281. 


196  JURISDICTION    ON   THE   HIGH    SEAS.  fPART  I. 

tinguished  from  thieving  or  larceny,  implies  not  only  the  actual 
taking  away  of  my  goods,  while  I  am,  as  we  say,  in  peace,  but  also 
the  putting  me  in  fear,  by  taking  them  away  by  force  and  arms  out 
of  my  hands,  or  in  my  sight  and  presence ;  when  this  is  done  upon- 
the  sea,  •\^•ithout  a  lawful  commission  of  war  or  reprisals,  it  is  down- 
right piracy. 

"  And  such  was  the  generosity  of  our  ancient  English,  such  the 
abhorrence  of  our  laws  against  pirates  and  sea-rovers,  that  if  any 
of  the  King's  subjects  robbed  or  murdered  a  foreigner  upon  our  seas 
or  within  our  ports,  though  the  foreigner  happened  to  be  of  a  nation 
in  hostility  against  the  King,  yet  if  he  had  the  King's  passport,  or 
the  Lord  Admiral's,  the  offender  was  published,  not  as  a  felon  only, 
but  this  crime  was  made  high  treason,  in  that  great  Prince  Henry 
the  Fifth's  time ;  and  not  only  himself,  but  all  his  accomplices  were 
to  suffer  as  traitors  against  the  crown  and  dignity  of  the  King." 


UNITED  STATES  v.  SMITH. 

SrPRE:srE  Court  of  the  United  States,  1820. 
(o  Tllieaton,  158.) 

The  Constitution  of  the  United  States  confers  upon  Congress  the  power  to  "  define 
and  punish  piracies."  In  legislating  upon  the  suhject — acts  of  1790  and  1819 — 
Congress,  instead  of  defining  piracy,  merelj'  referred  to  the  offense  of  piracy,  "  as 
defined  by  the  law  of  nations." 

Held,  that  this  definition  was  sufficient  to  meet  the  requirements  of  the  Consti- 
tution. 

This  was  an  indictment  for  piracj^  against  the  prisoner  Thomas 
Smith,  before  the  circuit  court  of  Virginia,  under  the  act  of  Congress, 
of  the  3d  of  March,  1819,  c.  76,  which  provides  (s.  5)  "  That  if  any 
person  or  persons  whatsoever,  shall,  on  the  high  seas,  commit  the 
crime  of  piracy,  as  defined  by  the  laic  of  nations^  and  such  offender 
or  offenders  shall  afterwards  be  brought  into,  or  found  in,  the  United 
States,  every  such  offender  or  offenders  shall,  upon  conviction  thereof, 
before  the  circuit  court  of  the  United  States  for  the  district  into  which 
lie  or  they  may  be  brought,  or  in  Mhieh  he  or  they  shall  be  found, 
be  punished  with  death." 

The  jury  found  a  special  verdict  as  follows  :  "  "We,  of  the  jury, 
find,  that  the  prisoner,  Thomas  Smith,  in  the  month  of  ^larch,  1819, 
and  others,  were  part  of  the  crew  of  a  private  armed  vessel,  called 
the  CreoUo  (commissioned  by  the  government  of  Buenos  Ayres.  a 
colony  then  at  war  with  Spain),  and  lying  in  the  port  of  Margaritta  ; 


CHAP.  III.]  UNITED   STATES    V.  SMITH.  197 

that  in  the  month  of  March,  1810,  the  said  prisoner  and  others  of  the 
crew  mutinied,  confined  their  officers,  left  the  vessel,  and  in  the  said 
port  of  Margaritta,  seized  1)}^  violence  a  vessel  called  the  Irresistible,  a 
private  armed  vessel,  lying  in  that  port,  commissioned  by  the  gov- 
ernment of  Artegas,  who  was  also  at  war  with  Spain  ;  that  the  said 
prisoner  and  others,  having  so  possessed  themselves  of  the  said  vessel, 
the  Irresistible,  appointed  their  officers,  proceeded  to  sea  on  a  cruise, 
without  any  documents  or  commission  whatever  ;  and  while  on  that 
cruise,  in  the  month  of  April,  1819,  on  the  high  seas,  committed  the 
offence  charged  in  the  indictment,  by  the  plunder  and  robbery  of 
the  Spanish  vessel  therein  mentioned.  If  the  plunder  and  robbery 
aforesaid  be  piracy  under  the  act  of  the  Congress  of  the  United 
States,  entitled,  'An  act  to  protect  the  commerce  of  tlie  United 
States,  and  punish  the  crime  of  piracy,'  then  we  find  the  said  prisoner 
guilty;  if  the  plunder  and  robbery,  above  stated,  l)e  not  piracy 
under  the  said  act  of  Congress,  then  we  find  him,  not  guilty." 

The  circuit  court  divided  on  the  question,  whether  this  Ije  piracy 
as  defined  by  the  law  of  nations,  so  as  to  be  punishable  under  the 
act  of  Congress,  of  the  3d  of  March,  1819,  and  thereupon  the  question 
was  certified  to  this  court  for  its  decision. 

Mr.  Justice  Story,  delivered  the  opinion  of  the  court : — "  The  act  of 
Congress  upon  which  this  indictment  is  founded  provides,  that  if  any 
person  or  persons  whatsoever,  shall,  upon  the  high  seas,  commit  the 
crime  of  piracy,  as  defined  by  the  law  of  nations,  and  such  offender 
or  offenders  shall  be  brought  into,  or  found  in  the  United  States, 
every  such  offender  or  offenders  shall,  upon  conviction  thereof,  etc., 
be  punished  with  death. 

"  The  first  point  made  at  the  bar  is,  whether  this  enactment  be  a 
constitutional  exercise  of  the  authority  delegated  to  Congress  upon 
the  subject  of  piracies.  The  Constitution  declares,  that  Congress 
shall  have  power  'to  define  and  punish  piracies  and  felonies,  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations.' 
The  argument  which  has  been  urged  in  behalf  of  the  prisoner  is, 
that  Congress  is  bound  to  define,  in  terms,  the  offence  of  piracy,  and 
is  not  at  liberty  to  leave  it  to  be  ascertained  by  judicial  interpreta- 
tion. If  the  argument  be  well  founded,  it  seems  admitted  by  the 
counsel  that  it  equally  applies  to  the  8th  section  of  the  act  of  Con- 
gress of  1790,  ch.  9,  which  declares,  that  robbery  and  murder  com- 
mitted on  the  high  seas  shall  be  deemed  piracy  ;  and  yet,  notwith- 
standing a  series  of  contested  adjudications  on  this  section,  no  doubt 
has  hitherto  been  breathed  of  its  conformity  to  the  Constitution. 

"In  our  judgment,  the  construction  contended  for  proceeds  upon 
too  narrow  a  view  of  the  language  of  the  Constitution.     The  power 


198  JOIISDICTION    OX    THE   HIGH    SELVS.  [PAI:T  I. 

given  to  Congress  is  not  merely  '  to  define  and  jjunish  piracies  ;'  if  it 
were,  the  words  'to  define,'  would  seem  almost  sur»erfluous,  since  the 
power  to  punish  piracies  would  be  held  to  include  the  jxjwer  of  as- 
certaining and  fixing  the  definition  of  the  crime.  And  it  has  been 
very  justly  observed,  in  a  celebrated  commentary,  that  the  definition 
of  piracies  might  have  Ijeen  left  without  inconvenience  to  the  law  of 
nations,  though  a  legislative  definition  of  them  is  to  be  found  in  most 
municipal  codes.  But  the  power  is  also  '  given  to  define  and  jjunish 
felonies  on  the  high  seas,  and  offences  against  the  law  of  nations.' 
The  term  '  felonies,'  has  been  supposed  in  the  same  work,  not  to 
have  a  very  exact  and  determinate  meaning  in  relation  to  offences 
at  the  common  law  committed  witliin  the  body  of  a  country.  How- 
ever this  may  be,  in  relation  to  offences  on  the  high  seas,  it  is  nec- 
essarily somewhat  indeterminate,  since  the  term  is  not  used  in  the 
crimmal  jurisprudence  of  the  admiralty  in  the  technical  sense  of  the 
common  law.  Offences,  too,  against  the  law  of  nations,  cannot,  with 
any  accuracy,  be  said  to  be  completely  ascertained  and  defined  in 
any  public  code  recognized  by  the  common  consent  of  nations.  In 
respect,  therefore,  as  well  to  felonies  on  the  high  seas  as  to  offences 
against  the  law  of  nations,  there  is  a  r>eculiar  fitness  in  giving  the 
power  to  define  as  well  as  to  punish  ;  and  there  is  not  the  slightest 
reason  to  doubt  that  this  consideration  had  very  great  weight  in 
producing  the  jjhraseology  in  question. 

"  But,  supposing  Congress  were  bound  in  all  the  eases  included 
in  the  clause  under  consideration  to  define  the  offence,  still  there  is 
nothing  which  restricts  it  to  a  mere  logical  enumeration  in  detail  of 
all  the  facts  constituting  the  offence.  Congress  may  as  well  define 
by  using  a  term  of  a  known  and  determinate  meaning,  as  by  an  express 
enumeration  of  all  the  particulars  included  in  that  term.  That  is 
certain  which  is  by  necessary  reference  made  certain.  When  the  act 
of  1790  declares,  that  any  i>erson  who  shall  commit  the  crime  of  rob- 
bery, or  murder,  on  the  high  seas,  shall  be  deemed  a  pirate,  the  crime 
is  not  less  clearly  ascertained  than  it  would  l>e  by  using  the  defini- 
tions of  these  terms  as  they  are  found  in  our  treatises  of  the  com- 
mon law.  In  fact,  by  such  a  reference,  the  definitions  are  necessarily 
included,  as  nmch  as  if  they  stood  in  the  text  of  the  act  In  respect 
to  murder,  where  'malice  aforethought'  is  of  the  essence  of  the 
offence,  even  if  the  common-law  definition  were  quoted  in  express 
terms,  we  should  still  \je  driven  to  deny  that  the  definition  was 
perfect,  since  the  meaning  of  '  malice  aforethought '  would  remain 
to  \je  gathered  from  the  common  law.  There  would  then  be  no  end 
to  our  difficulties,  or  our  definitions,  for  each  would  involve  some 
terms  which  might  still  require  some  new  explanation.     Such  a 


CHAr.  III.]  UNITED    STATES    V.  SMITH.  199 

construction  of  the  Constitution  is,  therefore,  wholly  inadvisable. 
To  define  piracies,  in  the  sense  of  the  Constitution,  is  merely  to 
enumerate  the  crimes  which  shall  constitute  piracy  ;  and  this  may 
be  done,  either  by  a  reference  to  crimes  having  a  technical  name,  and 
determinate  extent,  or  by  enumerating  the  acts  in  detail,  upon  which 
the  punishment  is  inflicted. 

"  It  is  next  to  bo  considered,  whether  the  crime  of  piracy  is  defined 
by  the  law  of  nations  with  reasonable  certainty.  What  the  law  of 
nations  on  this  subject  is,  may  be  ascertained  by  consulting  the  works 
of  jurists,  writing  professedly  on  public  law  ;  or  by  the  general  usage 
and  practice  of  nations  ;  or  by  judicial  decisions  recognizing  and  en- 
forcing that  law.  There  is  scarcely  a  writer  on  the  law  of  nations, 
who  does  not  allude  to  piracy  as  a  crime  of  a  settled  and  determinate 
nature ;  and  whatever  may  be  the  diversity  of  definitions  in  other 
respects  all  writers  concur,  in  holding  that  robbery,  or  forcible  de- 
predations upon  the  sea,  animo  furamU,  is  piracy.  The  same  doc- 
trine is  held  by  all  the  great  writers  on  maritime  law,  in  terms  that 
admit  of  no  reasonable  doubt. 

"  The  common  law,  too,  recognizes  and  punishes  piracy  as  an  offence, 
not  ag.iinst  its  own  municipal  code  but  as  an  offence  against  the  law 
of  nations  (which  is  part  of  the  common  law),  as  an  offence  against 
the  universal  law  of  society,  a  pirate  being  deemed  an  enemy  of  the 
human  race.  Indeed,  until  the  statute  of  28th  of  Henry  VIII.,  ch. 
15,  piracy  was  punished  in  England  only  in  the  admiralty  as  a  civil 
law  offence;  and  that  statute,  in  changing  the  jurisdiction,  has  been 
universally  admitted  not  to  have  changed  the  nature  of  the  offence. 
Sir  Charles  Hedges,  in  his  charge  at  the  admiralty  sessions,  in  the 
case  of  Rex  v.  Dmoson,  5  State  Trials,  declared  in  emphatic  terms 
that  'piracy  is  only  a  sea  term  for  robbery,  piracy  being  a  robbery 
committed  within  the  jurisdiction  of  the  admiralty.'  Sir  Leoline 
.Jenkins,  too,  on  a  like  occasion,  declared  that  '  a  robbery,  when  com- 
mitted upon  the  sea,  is  what  we  call  piracy ; '  and  he  cited  the  civil- 
law  writers,  in  proof. 

"And  it  is  manifest  from  the  language  of  Sir  William  Blackstone, 
4  Bl.  Comm.,  78,  in  his  comments  on  piracy,  that  he  considered  the 
common  law  definition  as  distinguishable  in  no  essential  respect 
from  that  of  the  law  of  nations.  So  that,  whether  we  advert  to 
writers  on  the  common  law,  or  the  maritime  law,  or  the  law  of 
nations,  we  shall  find  that  they  universally  treat  of  piracy  as 
an  otience  against  the  law  of  nations,  and  that  its  true  defhiition 
by  that  law  is  robbery  upon  the  sea.  And  the  general  practice  of 
all  nations  in  punishing  all  persons,  whether  natives  or  foreigners, 
who  have  committed  this  offence  against  any  persons  whatsoever, 


200  JURISDICTION    OS   THE   HIGH    SEAS.  [PART  J. 

with  whom  they  are  in  amity,  is  a  conclusive  proof  that  the  offence 
is  supposed  to  depend,  not  upon  the  particular  provisions  of  any 
municipal  code,  but  upon  the  law  of  nations,  both  for  its  definition 
and  punishment.  We  have,  therefore,  no  hesitation  in  declaring- 
that  piracy,  by  the  law  of  nations,  is  robbery  upon  the  sea,  and 
that  it  is  sufficiently  and  constitutionally  defined  by  tlie  fifth  section 
of  the  act  of  1819. 

"  Another  point  has  been  made  in  tliis  case,  which  is,  that  the 
special  verdict  does  not  contain  sufficient  facts  upon  which  the  court 
can  pronounce  that  the  prisoner  is  guilty  of  piracy.  We  are  of  a 
ditt'erent  opinion.  The  special  verdict  finds  that  the  prisoner  is 
guilty  of  the  plunder  and  robbery  charged  in  the  indictment ;  and 
finds  certain  additional  facts  from  which  it  is  most  manifest  that  he 
and  his  associates  were,  at  the  time  of  committing  the  offence,  free- 
booters upon  the  sea,  not  under  the  acknowledged  authority,  or  de- 
riving protection  from  the  flag  or  commission  of  any  government. 
If,  under  such  circumstances,  the  offence  be  not  piracy,  it  is  difficult 
to  conceive  any  which  would  more  completely  fit  the  definition. 

"It  is  to  be  certified  to  the  Circuit  Court,  that  upon  the  facts 
stated,  the  case  is  pirac}',  as  defined  by  the  law  of  nations,  so  as  to 
be  punishable  under  the  act  of  Congress  of  the  3d  of  March,  1819." 

Mr.  Justice  Livixgstoxe  dissented,  on  the  ground  that  the  act  of 
Congress  did  not  contain  such  a  definition  of  piracy  as  the  Consti- 
tution requires. 


UXITED  STATES  v.  THE  "  AMBROSE  LIGHT." 

U.  S.  DiSTPJCT  COUKT  FOK  So.  DiST.  OF  X.  Y.,  1885. 
(2.5  Federal  Beporter,  408.) 

Hehl,  by  District  Court,  Judge  Brown,  that  a  vessel  found  on  the  high  seas  in 
the  hands  of  insurgents  who  have  not  been  recognized  as  belligerents  by  any  inde- 
pendent nation,  may  be  regarded  as  piratical. 

The  libel  in  this  case  was  filed  to  procure  the  condemnation  of  the 
Ijrig  Amhrose  Lif/Jit,  which  was  brought  into  this  port  as  prize  on 
June  3,  1885,  by  Lieut.  Wright  and  a  prize  crew,  detached  from  the 
L'nited  States  gun-boat  Alliance^  under  Commander  Clarke,  by  whose 
orders  the  brigantine  had  been  seized  on  the  tw'enty-fourth  of  April. 
The  seizure  was  made  in  the  Caribbean  sea,  about  twenty  miles  to 
the  westward  of  Cartagena. 


CHAP.  III.]     UNITED   STATES    V.  THE    "AMBROSE   LIGHT."  201 

The  communder  was  looking  for  the  insurgent  Preston,  hy  \vliose 
order  Colon  had  shortly  before  been  fired,  to  the  great  loss  and  injury 
of  our  citizens. 

Observing  the  brigantino  displaying  a  strange  flag,  viz.,  a  red  cross 
on  a  white  ground,  he  bore  down  upon  her,  and  brought  her  to  l)y  a 
couple  of  shots  across  her  bows.  Before  coming  to,  she  exhibited  the 
Colombian  flag.  On  examination,  some  sixty  armed  soldiers  were 
found  concealed  below  her  decks,  and  one  cannon  was  aboard,  with 
a  considerable  quantity  of  shot,  shell,  and  annnunition.  Preston  was 
not  found.  Her  papers  purported  to  commission  her  as  a  Colombian 
man-of-war,  and  I'ead  as  follows:  (Translation.) 

"  I,  Pedroa  Lara,  governor  of  the  province  of  Barrantpiilla,  in  the 
state  of  Bolivia,  in  the  United  States  of  Coloml)ia,  with  full  powers 
conferred  by  the  citizen  president  of  the  state,  I  give  to  whom  ii  may 
concern  this  pateate  of  the  sailing  vessel  Ambrose  Li'jht^  that  she 
may  navigate  as  a  Colombian  vessel-of-war  in  the  waters  touching 
the  coast  of  this  republic,  in  the  Atlantic  ocean. 

"  Therefore,  the  general  commandants  and  captains  of  the  vessels 
of  war  of  the  friendly  nations  of  Colombia  are  requested  to  give  this 
vessel  all  the  consideration  that  by  right  belongs  to  the  vessels  of 
the  class  of  the  Ambrose  Lujht  of  all  civilized  nations.  In  the  faith 
of  which  we  have  given  these  jDresents,  and  signed  with  rul)]-ic  with 
the  secretary  of  my  office,  in  the  city  of  Barranquilla,  on  the  eight- 
eenth day  of  the  month  of  April,  1885. 

(Signed)  "  Pedroa  Lara 

The  Secretary  [Sig.],  "  R.  A.  Del  Valle. 

(Indorsed  : )  "  Office  of  the  Military, 

"  Barranquilla,  April  18,  1885. 

"  Registered  and  noted  in  folio  and  book,  respectively. 

"  The  General  in  Chief,  N.  Juneno  Collante. 

"  Adjutant  and  Secretary,  A.  Solanom." 

Believing  this  commission  to  be  irregular,  and  to  show  no  lawful 
authority  to  cruise  as  a  man-of-war  on  the  high  seas.  Commander 
Clarke  reported  her  under  seizui-e,  in  accordance  with  the  naval 
regulations,  to  Admiral  .Jowett,  commanding  the  North  i\tlantic 
squadron,  then  cruising  in  the  Central  American  waters,  and  the 
admiral  directed  the  vessel  to  be  taken  to  New  York  for  adjudication 
as  prize.  The  vessel  was  at  first  supposed  to  belong  to  citizens  of 
the  United  States.  The  proofs  showed  that  she  had  been  sold  to, 
and  legally  belonged  to,  Colente,  (me  of  the  chief  military  leaders  of 
the  insurgents  at  Barranquilla.  None  of  her  officers  or  crew  were 
citizens  of  the  ITnited  States.  She  was  engaged  upon  a  hostile 
expedition  against  Cartagena,  and  designed  to  assist  in  the  blockade 


l02  JUUISDICTION   ON  THE   HIGH   SEAS.  [PART  L 

and  siege  of  that  port  by  the  rebels  against  the  estabhshed  govern- 
ment of  the  United  States  of  Colombia.  She  had  left  Sabanilla  on 
April  20th,  bound  for  Baru,  near  Cartagena,  where  she  expected  the 
soldiers  aboard  to  disembark.  She  Avas  under  the  orders  of  the 
colonel  of  the  troops,  whose  instructions  were  to  shoot  the  captain 
if  disobedient  to  his  orders.  Further  instructions  were  to  fight  any 
Colombian  vessel  not  showing  the  white  flag  with  a  red  cross. 

Sabanilla.  and  a  few  other  adjacent  sea-ports,  and  the  province  of 
Barrampiilla,  including  the  city  of  Barranquilla,  had  been  for  some 
months  previous,  and  still  were,  under  the  control  of  the  insurgents. 
The  proofs  did  not  show  that  any  other  depredations  or  hostilities 
were  intended  by  the  vessel  than  such  as  might  be  incident  to  the 
struggle  between  the  insnrgents  and  the  government  of  Colombia, 
and  to  the  so-called  blockade  and  siege  of  Cartagena. 

As  respects  any  recognition  of  the  insurgents  l)y  foreign  powers, 
it  did  not  appear  in  evidence  that  up  to  the  time  of  the  seizure  of  the 
vessel,  on  April  24,  1885,  a  state  of  war  had  been  recognized  as  exist- 
ing, or  that  the  insurgents  had  ever  been  recognized  as  a  de  facto 
government,  or  as  having  belligerent  rights,  either  by  the  Colombian 
government,  or  by  our  own  government,  or  by  any  other  nation. 
The  claimants  introduced  in  evidence  a  diplomatic  note  from  our 
Secretary  of  State  to  the  Colombian  minister,  dated  April  24,  1885, 
which,  it  was  contended,  amounted  to  a  recognition  by  implication 
of  a  state  of  war.  The  government  claimed  the  forfeiture  of  the  ship 
as  piratical,  under  the  law  of  nations,  because  the  was  not  sailing 
under  the  authority  of  any  acknowledged  power.  The  claimants 
contended  that,  being  actually  belligerent,  she  was  in  no  event 
piratical  by  the  law  of  nations;  but  if  so,  that  the  subsequent  re- 
cognition of  belligerency  by  our  government  by  implication  entitles 
her  to  a  release. 

Judgment. — Broa\'x,  J.,  (extracts) :  — "  6.  That  recognition  b}'  at 
least  some  established  government  of  a  '  state  of  war,'  or  of  the  bel- 
ligerent rights  of  insurgents,  is  necessary  to  prevent  their  cruisers 
from  being  held  legally  piratical  by  the  coui'ts  of  other  nations 
injuriously  affected,  is  either  directh^  affirmed,  or  necessarily  implied 
from  many  adjudged  cases;  and  I  have  found  no  adjudication  in 
which  a  contrary  view  is  even  intimated. 

'•  This  great  weight  of  authority,  drawn  from  every  source  that 
authoiitatively  makes  up  the  law  of  nations,  seems  to  me  fully  to 
warrant  the  conclusion  that  the  public  vessels  of  war  of  all  nations, 
for  the  preservation  of  the  peace  and  order  of  the  seas,  and  the 
security  of  their  own  commerce,  have  the  rif/ht  to  seize  as  piratical 
all  vessels  carrying  on,  or  threatening  to  carry  on,  unlawful  private 


CHAP.  111.]     UNITED    STATES    V.  THE    "AMBROSE   LIGHT."  203 

warfare  to  their  injury ;  and  that  privateers,  or  vessels  of  war,  sent 
out  to  hlockade  ports,  under  the  commissions  of  insurgents,  unrecog- 
nized by  tlie  government  of  any  sovereign  power,  are  of  that  char- 
acter, and  derive  no  protection  from  sucli  void  connnissions. 

"It  thus  appeals  iliat  tlie  rules  laid  down  and  implied  in  the  decis- 
ions of  our  supreme  court  in  the  cases  of  Jiose  v.  IL'jnel;/  and  V.  S. 
v.  Palmer,  nearly  70  years  ago,  have  been  since  almost  universally 
followed.  The  practical  responsibility  of  determining  whether  in- 
surgent vessels  of  war  shall  be  treated  as  lawful  belligerents,  or  as 
piratical,  rests  where  the  supreme  court  then  in  effect  decided  that 
it  ought  to  rest,  viz.,  with  the  political  and  executive  departments  of 
the  government.  These  departments  have  it  in  tlieir  power,  at  any 
moment,  through  the  granting  or  withholding  of  recognition  of  bel- 
ligerency, and  through  the  extent  of  such  recognition  as  they  may 
choose  to  accord,  virtually  to  determine  how  such  cruisers  shall  be 
treated  by  tlie  courts. 

"  Even  after  judgment  and  sentence  the  prisoners  may,  like  Smith 
and  his  associates,  convicted  before  Mr.  Justice  Grier,  be  treated, 
and  exchanged,  as  prisoners  of  war.  And  it  is  with  those  dei)art- 
ments,  exclusively,  that  the  discretion  ought  to  rest  to  determine  when 
and  how  its  technical  rights  against  rebel  cruisers  shall  be  enforced. 
Its  naval  regulations  will  be  framed  accordingly  ;  and  any  seizures 
made  under  such  regulations  may  be  enforced,  or  at  any  moment 
remitted,  at  the  pleasure  of  those  departments. 

"  Where  insurgents  conduct  an  armed  strife  for  political  ends,  and 
avoid  any  infringement  or  menace  of  the  rights  of  foreign  nations  on 
the  high  seas,  the  modern  practice  is,  in  the  absence  of  treaty  stipu- 
lations or  other  special  ties,  to  take  no  notice  of  the  contest.  One  of 
the  earliest  applications  of  this  rule  that  I  have  met  is  in  the  answer 
of  the  states-general  to  Sir  Joseph  York's  demand  in  1779  for  the 
surrender  of  Paul  Jones'  prizes  as  piratically  captured,  in  which  their 
Mightinesses  say  that  'they  had  for  a  century  past  strictly  observed 
the  maxim  that  they  will  in  no  respect  presume  to  judge  of  the  legal- 
ity or  illegality  of  the  actions  of  those  who,  upon  the  open  sea,  have 
taken  any  vessels  that  do  not  belong  to  this  country.'  On  this  point 
Prof.  Lawrence,  in  his  recent  Iland-book  of  Int.  Law  (London,  1884), 
says : 

"'  When  a  community,  not  being  a  state  in  the  eye  of  international 
law,  resorts  to  hostilities,  it  may,  in  respect  of  war,  be  endoAved  with 
the  rights  and  subjected  to  the  obligations  of  a  state  if  otlier  powers 
accord  it  what  is  called  recognition  of  belligerency.  Neutral  powers 
should  not  do  this  *  *  *  unless  it  affect  by  the  sti'ugglethe  interests 
of  the  recognizing  state.     If  the  struggle  is  maritime,  recognition  ij 


i:04  JUrJSDICTIOX    ON    THE   HIGH    SEAS.  [PAUT  I. 

almost  a  necessity.     The  controversy  of  ISGl   illustrates  the  whole 
question.' 

"Tlie  practice  is  stated  by  Hall  as  follows:  'When,  however, 
piratical  acts  have  a  political  object,  and  are  directed  solely  against 
a  particular  state,  it  is  not  the  practice  for  states  other  than  that 
attacked  to  seize,  and  still  less  to  punish,  the  persons  committing 
them.  It  would  be  otherwise,  so  far  as  seizure  is  concerned,  with  re- 
spect to  vessels  manned  by  persons  acting  with  a  political  ol)ject,  if 
the  crew,  in  the  course  of  carrying  out  their  object,  committed  acts 
of  violence  against  ships  of  other  states  than  that  against  whicli  their 
political  operation  was  aimed ;  and  the  mode  in  which  the  crew  were 
dealt  with  would  probably  depend  on  the  circumstances  of  the  case.' 
Int.  Law,  §  81,  p.  223. 

'•  Whether  a  foreign  nation  shall  exercise  its  rights  only  when  its 
owu  interests  are  immediately  threatened,  or  under  special  provoca- 
tions only  after  uijuries  inflicted  by  the  insurgents,  as  in  this  case,  at 
Colon,  is  a  question  purely  for  the  executive  department.  l>ut  when 
a  seizure  has  been  made  by  the  navy  department,  under  the  ivgula- 
tions,  and  the  case  is  prosecuted  before  the  court  by  the  goverinnent 
itself,  cliihmng  summumjus, — its  extreme  rights — the  court  is  Ijound 
to  apply  to  the  case  the  strict  technical  rules  of  international  law. 
Tlie  right  here  asserted  maybe  rarely  enforced;  the  very  knowledge 
that  the  right  exists  tends,  effectually,  in  most  cases,  to  prevent  any 
violation  of  it,  or  at  least  any  actual  interference  by  insurgents  with 
the  rights  of  other  nations.  But  if  the  right  itself  were  denied,  the 
counnerce  of  all  nations  would  be  at  the  mercy  of  every  petty  con 
test  carried  on  by  irresponsible  insurgents  and  marauders  under  the 
name  of  war. 

"  In  the  absence  of  any  recognition  of  these  insurgents  as  belliger- 
ents, I  therefore  hold  tlie  Ambrose  Light  to  have  been  lawfully  seized, 
as  l)ound  upon  an  expedition  technically  piratical."  ^ 

[On  the  other  ground,  however,  that  the  Secretary  of  State,  l)y  his 
note  to  the  Colombian  ■Minister,  April  24,  iSSo,  had  recognized  by 
iiiil)lieation  a  state  of  war,  the  vessel  was  released.] 

1  The  judgment  in  the  case  of  the  Amhrom  Light  has  called  forth  much  adverse 
criticism;  and  on  the  whole  the  weight  of  opinion  would  seem  to  be  against  the 
position,  that  insurgent  vessels  not  molesting  the  ships  of  other  nations  may  be 
treated  as  pirates.  See  a  criticism  of  this  case  by  Mr.  Francis  Wharton,  in  :) 
Wharton's  Digest,  409. 

In  thecase  of  United  Statesw  Baker,  1861,  5  Blatch.,  G,  Judge  Xelsox  charged 
the  jury  that  "if  it  were  necessary  on  the  part  of  the  government  to  bring  the 
crime  charged  against  the  prisoners  (officers  of  the  privateer  .SVa-anua/i, within  the 
definition  of  robbery  and  piracy  as  known  to  the  connnon  law  of  nations,  there 
would  be  great  difficulty  in  so  doing,  perhaps,  upon  the  counts,  certainly  upon  the 


CHAP.  III.]  THE   MAGELLiV^^   PIKATES.  205 


THE  MAGELLAN  PIRATES. 

ECCL.    AXD    Al)M.    COUKT,    1853. 

(1  Spink!<'  Eccl.  &  Adiu.  Hep.,  81.) 

Insurgents  may  become,  by  depreilations  against  third  powers,  pirates  as  'U'ell  as 
insm'gents. 

LusiiiiVGTON,  J.    (extract) ; — 

"  I  apprehend  that  iu  the  admmistration  of  our  criminal  law, 
generally  speaking,  all  persons  are  held  to  be  pirates  who  are  found 
guilty  of  piratical  acts,  and  piratical  acts  are  robbery  and  murder 
upon  the  high  seas.  I  do  not  believe  that,  even  where  human  life 
was  at  stake,  our  courts  of  common  law  ever  thought  it  necessary 
to  extend  their  inquiry  further,  if  it  was  clearly  proved  against  the 
accused  that  they  had  committed  robbery  and  murder  upon  the  liigh 
seas.  In  that  case  they  were  adjudged  to  be  pirates,  and  suli'ered 
accordingly.  *  *  *  It  was  never,  so  far  as  I  am  able  to  find,  deemed 
necessary  to  inquire  whether  the  parties  so  convicted  had  intended 
to  rob  or  to  murder  on  the  high  seas  indiscriminately.  Tliough  the 
municipal  law  of  different  countries  may  and  does  differ  in  many 
respects  as  to  its  definition  of  piracy,  yet  I  apprehend  that  all  nations 
agree  in  this,  that  acts  such  as  those  which  I  have  mentioned,  when 
committed  on  the  high  seas,  are  piratical  acts,  and  contrary  to  the 

evidence.  For  that  shows,  if  anytliing,  an  intent  to  depredate  upon  the  vessels 
and  property  of  one  nation  only,  the  United  States,  which  falls  far  short  of  the 
spirit  and  intent  which  are  said  to  constitute  the  essential  elements  of  the  crime. 
But  the  robbery  charged  in  this  case  is  that  which  the  act  of  Congress  (1820)  de- 
scribes as  a  crime,  and  may  be  denominated  a  statute. offence  as  contra-distin- 
guished from  that  known  to  the  law  of  nations.  The  act  declares  the  person  a 
pirate,  punishable  by  death,  who  commits  the  crime  of  robbery  upon  the  high  seas, 
against  any  ship  or  vessel,  etc."  The  jury  did  not  agree  in  this  case.  But  in 
Philadelpliia  four  individuals  were  convicted  for  the  same  offence.— These  arrests 
led  to  retaliatory  action  on  the  part  of  the  Confederate  States.  And  on  the  81st 
of  January,  1862,  an  order  was  issued  by  the  Secretary  of  State,  to  the  marshals, 
directing  the  transfer  of  all  prisoners  chargeil  with  piracy,  including  those  who 
had  been  convicted  at  Philadelphia,  to  a  military  prison  for  the  purpose,  it  was 
understood,  of  exchanging  them  as  prisoners  of  war.  (Lawrence's  Wheaton, 
1863,  p.  253,  note  ;  3  Wharton's  Digest,  p.  465.,  For  other  judicial  decisions 
touching  the  status  of  the  rebels  in  the  civil  war  in  the  United  States,  see  the 
Golden  Rocket  cases— viz..  Dole  v.  The  N.  E.  M.  M.  Ins.  Co.,  1  Allen,  392  ;  and 
same  in  U.  S.  Circuit  Court  for  Massachusetts  ;  in  which  it  was  held  that  the 
rebels  iu  that  war  were  not  pirates  jure  (jentium. 


206  JURISDICTION    ON    THE   HIGH    SEAS.  [PAIIT  I. 

law  of  nations.  *  *  *  I  think  it  does  not  follow  that,  because  persons 
who  are  rebels  and  insurgents  may  commit  against  the  ruling 
powers  of  their  own  country  acts  of  violence,  they  may  not  be,  as 
well  as  insurgents  and  rebels,  pirates  also ;  pirates  for  other  acts 
committed  towards  other  persons.  It  does  not  follow  that  rebels 
and  insurgents  may  not  commit  piratical  acts  against  the  subjects 
of  other  States,  especially  if  such  acts  were  in  no  degree  with  the 
insurrection  or  rebellion.  Even  an  independent  State  may,  in  my 
opinion,  be  guilty  of  piratical  acts.  "What  were  the  Barbary  tribes  of 
olden  times  ?  wliat  are  many  of  the  African  tribes  at  this  moment  ? 
It  is,  I  believe,  notorious  that  tribes  now  inhabiting  the  African 
coast  of  tlie  ]Mediterranean  will  send  out  their  boats  and  catch  any 
ships  becalmed  upon  their  coasts  ? 

"  Are  they  not  pirates  because,  perhaps,  their  sole  livelihood  may 
not  depend  upon  piratical  acts  ?  I  am  aware  that  it  has  been  said 
that  a  State  cannot  be  piratical,  but  I  am  not  disposed  to  assent  to 
such  dictum  as  a  universal  proposition." 


THE  "3I0NTEZUMA,"  1877. 

{Cah-n:  Droit  Internatlonul,  ith  Ed.,  I.,  591.) 

Ships  belonging  to  insurgents,  and  confining  tlieir  liostile  acts  to  the  parent 
government,  are  not  to  be  treated  as  pirates  by  foreign  powers. 

"Le  vapeur  J/o7iteznni<f,  dans  Torigine  navire  marchand  espagnol, 
passe  au  service  de  Tinsurrection  cubaine,  se  trouvait  dans  un  cas 
analogue  a  celui  du  Portena. 

"Au  commencement  de  1877,  ce  navire  c'tant  parvenu  dans  les 
eaux  de  Cuba  ou  dans  le  voisinage,  des  insurges  de  cette  ile,  qui  se 
trouvaient  a  bord  corame  j)assagers,  s'en  emparorent,  lui  donnerent 
le  nom  du  (Jespedes  ;  puis,  ayant  arbore  le  pavilion  cubain,  ils  I'em- 
ployerent  a  attaquer  les  navires  marchands  de  I'Espagne  dans  le 
Rio  de  la  Plata. 

"  Le  legation  d'Espagne  a  IJio  de  Janeiro,  denianda  au  gouvernement 
bresilien  que,  si  le  Montezuma  arrivait  dans  quelque  port  de  I'Em- 
pire,  il  fut  traite  comme  pirate  et  soumis  a  toute  la  rigueur  des  lois. 
£n  reponse  a  cette  deniande,  le  baron  de  Cotejipe,  ministi'C  des 
affaires  etrangores  du  Ibe-^il,  adressa,  le  12  Janvier,  la  dupcche 
suivante  a  M.  de  Estefani,  charge'  d'affaires  d'P^spagne  : 

"  '  Le  gouvernement  de  Sa  Majeste  Catholi(p;e  pent  soumettre  le 
Montezum,a  a  toute  la  rigueur  de  ses  lois  comme  pirate.     Personne 


CHAT'.  111.]  THE    "  MONTEZUMA."  207 

ne  lui  deniera  ce  droit;  mais  le  gouvernement  imperial,  qui  est 
c'tranger  a  la  question  de  Pile  de  Cuba,  ne  se  trouve  pas  ol)lig-c' 
d'agir  de  la  ineme  fa5on;  et  en  refusant  de  le  faire  il  suit  une  regie 
generalement  admise,  qui  est  la  premiere  a  laquelle  il  doive  se  con- 
former  dans  la  question  actuelle.  Comme  preuve  de  ce  que  je  dis  et 
sans  appliquer  le  principe  au  cas  de  Tile  precitee,  quMl  me  soit  per- 
mis  de  signaler  que  tout  gouvernement  qui  n'est  pas  interesso  dans 
une  insurrection,  a  dans  de  certaines  circonstances  la  faculte  de 
reconnaitre  aux  insurges  le  caractere  de  belligerants. 

"  '  II  n'est  pas  douteux  que  Tile  de  Cuba  soit  en  etat  de  rebellion 
et  que  les  individus  qui  se  sont  empares  du  Montezuma^  soient  des 
insurges  de  cette  lie.  Cette  circonstance  a  laquelle  M.  de  Estefani 
lui-raeme  fait  allusion  dans  sa  premiere  note  sufRt  pour  donner  au 
fait  de  ces  individus  la  signification  politique  qui  leur  meconnait 
dans  sa  seconde.  Bien  plus  M.  de  Estefani  dit  que  les  insurges  des- 
tinaient  le  vapeur  a  attaquer  les  navires  marchands  de  I'Espagne 
dans  le  Rio  de  la  Plata;  d'oti  il  resulte,  le  cas  etant  bien  examine, 
que  ces  insurges  paraissent  etre  des  agents  politiques  agissant  dans 
des  fins  politiques. 

"  Les  pirates,  a  proprement  parler,  sont  ceux  qui  coureiit  les  mers 
pour  leur  propre  compte,  sans  autorisation  conij^^teitte^  dans  le  but 
de  s'emparer  de  force  des  navires  qu'ils  rencontrent,  en  commettant 
des  depredations  contre  toutes  les  nations  indistinctement.  Cette 
definition  ne  pent  certainement  s'appliquer  a  ceux  qui  out  j)ris  le 
Montezuma.  A  cela  s'opposent  les  arguments  memes  mis  en  avant 
par  la  legislation  de  Sa  Majeste  Catholique.  Les  hostilites  qu'elle 
denonce  et  prevoit  ne  sont  pas  dirigees  contre  toutes  les  nations, 
mais  uniquement  contre  TEspagne ;  elles  n'ont  pas  pour  but  de 
commettre  des  depredations,  mais  d'aider  la  cause  d'une  colonic  en 
insurrection. 

" '  C'est  pour  ces  considerations,  qui  me  paraissent  concluantes, 
que  le  gouvernement  imperial  ne  se  croit  pas  autorise  a  ordonner  la 
saisie  du  vapeur  ;  et  en  admettant  qu'il  s'y  determinat,  les  tribunaux, 
envisageant  le  cas  sous  un  autre  aspect,  ne  se  jugeraient  pas  com- 
petents,  parce  que  ledit  acte  aurait  etc  accompli  sur  un  navire 
espagnol  par  des  individus  qui  se  trouvaient  a  bord  ou  dans  des 
eaux  qui  n'etaient  pas  bresiliennes. 

"  '  On  ne  saurait  invoquer  le  traite  d'extradition  entre  le  Bresil  et 
FEspagne.  Le  charge  d'affaires  ne  demande  pas  qu'on  livre  les 
gens  qui  ont  pris  le  Montezuma^  mais  qu'on  les  punisse  au  Bresil. 
Le  traite  n'eclaircit  done  pas  la  question  et  ne  fournit  point  d'argu- 
ments  contre  la  decision  du  gouvernement  espagnol. 

"  'M.  de  Estefani  ne  se  juge  pas  competent  pour  apprecier  Tana- 


208  JUUISDICTIOX   ox    THE   HIGH    SEAS.  [PART  I. 

logic  qui  peut  exister  eutre  le  cas  du  Montezuma  et  celui  d'autres 
uavires.  Je  me  permettrai  de  lui  rappeler  que  Tanalogie  entre  le 
Montezuma  et  le  Portefia  est  complete.  Tous  les  deux,  etrangers  au 
Bresil  et  naviguant  dans  des  eaux  qui  ne  sont  pas  bresiliennes,  out 
ete  pris  par  des  in(U\'idus  qui  etaient  a  bord  comme  passagers  et 
servaient  d'agents  aux  insurges.  S'il  y  a  une  difference,  c'est  celle 
qui  provient  de  la  duree  do  la  lutte  dans  la  province  argentine  et 
dans  la  colonic  espagnole. 

" '  Le  gouvernement  imperial  respecte  les  principes  acceptes  par 
les  nations  civilisees ;  c'est  pourquoi  il  ne  croit  pas  de  son  devoir  de 
consenter  a  la  demaude  de  la  legation  d'Espagne.'  " 


THE  "IIUASCAR,"  1877. 
(3  Wharton' a  Digest,  p.  474.) 

Rebels  of  one  State  may  be  treated  as  pirates  by  other  States,  if  they  extend  their 
hostile  acts  to  the  ships  or  citizens  of  the  latter  States. 

"The  crew  of  the  Peruvian  monitor,  the  Una  scar,  anchored  at 
Callao,  revolted  on  May  6,  1877,  and  declared  for  the  insurgent  gov- 
ernment of  Pierola.  The  Huascar  proceeded  to  sea  without  opposi- 
tion from  other  Peruvian  vessels  in  the  harbor.  On  ^lay  8  the  titu- 
lar government  of  Peru  issued  a  decree  calling  the  crew  of  the 
Huascar  '  rebels,'  and  authorizing  her  capture  (and  stating  further 
that  the  Peruvian  government  would  not  be  responsible  for  the  acts 
of  the  Huascar.)  The  Huascar  then  stopped  several  British  vessels, 
taking  out  of  one  of  them  t^^'o  officers  who  were  going  to  Peru  to 
enter  government  service.  The  British  admiral  on  these  coasts  being 
advised  of  these  proceedings,  and  also  of  the  seizure  of  certain 
lighters  of  coal  belonging  to  British  subjects,  sent  the  Shah,  a  Brit- 
ish cruiser,  to  sea  to  seize  the  Huascar.  An  engagement  took  place, 
which  was  only  partially  successful,  the  Huascar  ultimately  eluding 
her  assailant.  The  Huascar  subsequently  surrendered  to  Peru,  and 
Peru  claimed  indemnity  from  Great  Britain  for  the  conduct  of  the 
British  admiral.  The  laAV  officers  of  the  Crown,  on  the  question 
being  referred  to  them,  held  that  as  the  Huascar  was  sailing  under 
no  national  flag,  and  Avas  an  irresponsible  depredating  cruiser, 
approved  the  conduct  of  the  admiral."' 


OHAP.  m.J  LE   "  LOUIS."  209 


LE  «  LOUIS." 
High  Court  of  Admiralty,  1S17. 

(2  Dodmn,  210.) 
The  slave  trade  is  not  piracy  l)y  the  law  of  nations. 

This  was  the  case  of  a  French  vessel  which  sailed  from  .'^^artillique 
on  the  30th  of  January,  1816,  destined  on  a  voyai;-e  to  the  coast  of 
Africa  and  back,  and  was  captured  ten  or  twelve  leagues  to  the 
southward  of  Cape  Mesui-ada,  by  the  Q'feen  Charlotte  cutter,  on  the 
11th  of  March  in  the  same  year,  and  carried  to  Sierra  Leone. 

She  was  proceeded  against  in  the  vice-admiralty  court  of  that 
colony,  and  the  information  pleaded, — 1st,  that  the  seizors  were 
duly  and  legally  commissioned  to  make  captures  and  seizures.  2d, 
That  the  seizure  was  within  the  jurisdiction  of  the  court.  3d,  That 
the  vessel  belonged  to  French  subjects  or  others,  and  was  fitted  out, 
manned  and  navigated  for  the  purpose  of  carrying  on  the  African 
slave-trade,  after  that  trade  had  been  abolished  by  the  internal  laws 
of  France,  and  by  the  treaty  between  Great  Britain  and  France.  4th, 
That  the  vessel  had  bargained  for  twelve  slaves  at  Mesurada,  and 
was  prevented  by  the  capture  alone  from  taking  them  on  board. 
5th,  That  the  brig  being  engaged  in  the  slave-trade,  contrary  to  the 
laws  of  France,  and  the  law  of  nations,  was  liable  to  condemnation, 
and  cottld  derive  no  protection  from  the  French  or  any  otlier  flag.  Gtli, 
That  the  crew  of  the  brig  resisted  the  Queen  Charlotte,  and  pirati- 
cally killed  eight  of  her  crew,  and  wounded  twelve  others.  7th,  That 
the  vessel  being  engaged  in  this  illegal  traffic  resisted  the  King's 
duly  commissioned  cruisers,  and  did  not  allow  of  search  until  over- 
powered by  numbers.  And  8th,  That  l)y  reason  of  the  circumstances 
stated,  the  vessel  was  out  of  the  protection  of  any  law,  and  liable  to 
condemnation.  The  ship  was  condemned  to  His  JMajesty  in  the 
vice-admiralty  court  at  Sierra  Leone,  and  from  this  decision  an 
appeal  was  made  to  this  court. 

Sir  "William  Scott  delivered  tlie  judgment,  extracts  from  which 
are  as  follows : — "  L'pon  the  first  question,  whether  the  right  of 
search  exists  in  time  of  peace,  I  have  to  obseiwe  that  two  principles 
of  public  law  are  generally  recognized  as  fundamental.  One  is  the 
perfect  equality  and  entire  independence  of  all  distinct  states. 

"  Relative  magnitude  creates  no  distinction  of  right,  relative  im- 
becilitv,  Avhether  permanent  or  casual,  gives  no  additional  right  to  the 
14 


210  jnilSDICTlON    ON    THE    HIGH    SEAS.  [PART  I. 

more  powerful  neighbor ;  and  any  advantage  seized  upon  that  ground 
is  mere  usurpation.  This  is  the  great  foundation  of  public  hiw, 
which  it  mainly  concerns  the  peace  of  mankind,  both  in  their  pub- 
lic and  private  capacities,  to  preserve  inviolate.  The  second  is,  that 
all  nations  being  equal,  all  have  an  equal  right  to  the  uninterrupted 
use  of  the  unappropriated  parts  of  the  ocean  for  their  navigation. 
In  places  where  no  local  authority  exists,  where  the  subjects  of  all 
states  meet  upon  a  footing  of  entire  equality  and  independence,  no 
one  state,  or  any  of  its  subjects,  has  a  right  to  assume  or  exercise 
authority  over  the  subjects  of  another.  I  can  find  no  authority  that 
gives  the  right  of  interruption  to  the  navigation  of  states  in  amity 
upon  the  high  seas,  excepting  that  which  the  rights  of  war  give  to 
both  belligerents  against  neutrals.  This  right,  incommodious  as  its 
exercise  may  occasionally  be  to  those  who  are  subjected  to  it,  has 
been  fully  established  in  the  legal  practice  of  nations,  having  for  its 
foundation  the  necessities  of  self-defence,  in  preventing  the  enemy 
from  being  supplied  with  the  instruments  of  war,  and  from  having 
his  means  of  annoyance  augmented  by  the  advantages  of  maritime 
commerce.  Against  the  property  of  his  enemy  each  belligerent  has 
the  extreme  rights  of  war.  Against  that  of  neutrals,  the  friends  of 
both,  each  has  the  right  of  visitation  and  search,  and  of  pursuing  an 
inquiry  whether  they  are  employed  in  the  ser\4ce  of  his  enemj^  the 
right  being  subject,  in  almost  all  cases  of  an  inquiry  wrongfully 
pursued,  to  a  compensation  in  costs  and  damages.  *  *  * 

"  The  right  of  visitation  being  m  this  present  case  exercised  in 
time  of  peace,  the  question  arises,  how  is  it  be  legalized  ?  And  look- 
ing to  what  I  have  described  as  the  known  existing  law  of  nations, 
evidenced  by  all  authorit}^  and  all  practice,  it  must  be  upon  the 
ground  that  the  captured  vessel  is  to  be  taken  legally  as  a  pirate,  or 
else  some  new  ground  is  to  be  assumed  on  which  this  right  which 
has  been  distinctly  admitted  not  to  exist  generally  in  time  of  peace 
can  be  supported.  Wherever  it  has  existed  it  has  existed  upon  the 
ground  of  repelling  injury,  and  as  a  measure  of  self-defence.  No 
practice  that  exists  in  the  world  carries  it  farther. 

"  It  is  perfectly  clear,  that  this  vessel  cannot  be  deemed  a  pirate 
from  any  want  of  a  national  character  legally  obtained.  She  is  the 
property,  not  of  sea-rovers,  but  of  French  acknowledged  domiciled 
subjects.  She  has  a  French  pass,  French  register,  and  all  proper 
documents,  and  is  an  acknowledged  portion  of  the  mercantile  ma- 
rine of  that  country.  If,  therefore,  the  character  of  a  pirate  can  be 
im[)ressed  upon  her,  it  must  be  only  on  the  ground  of  her  occupa- 
tion as  a  slave-trader ;  no  other  act  of  piracy  being  imputed.  Tlie 
question  then   comes  to  this  : — can  the  occupation  of  this  Frcncli 


CHAP.  III.]  LE   "  LOmS."  211 

vessel  be  legally  deemed  a  piracy,  inferring  as  it  must  do,  if  it  be  so, 
all  the  pains  and  penalties  of  piracy?  I  must  remember,  that  in 
discussing  the  question,  I  must  consider  it,  not  according  to  any 
private  moral  apprehensions  of  my  own  (if  I  entertained  them  ever 
so  sincerely)  but  as  the  law  considers  it;  and,  looking  at  the  question 
in  that  direction,  I  think  it  requires  no  labour  of  proof  to  shew  that 
such  an  occupation  cannot  be  deemed  a  legal  piracy.  Tlie  very 
statute  lately  passed  which  jnakes  it  a  transportable  offence  in  any 
British  subject  to  be  concerned  in  this  trade,  affords  a  decisive  proof 
that  it  was  not  liable  to  be  considered  as  a  piracy,  and  a  capital 
offence,  as  it  would  be  in  foreigners  as  well  as  IJritish  snl)jects,  if  it 
was  a  piracy  at  all.  In  truth  it  wants  some  of  the  distinguishing 
features  of  that  offence.  It  is  not  the  act  of  freebooters,  enemies  (jf 
the  human  race,  renouncing  every  country,  and  ravaging  every 
country  in  its  coasts  and  vessels  indiscriminately,  and  tlierel)y  creat- 
ing an  universal  terror  and  alarm ;  but  of  persons  confining  their 
transactions  (reprehensible  as  they  may  be)  to  particular  countries, 
Avithout  exciting  the  slightest  apprehension  hi  others.  It  is  not  the 
act  of  persons  insulting  and  assaulting  coasts  and  vessels  against  the 
Avill  of  the  governments  and  the  course  of  their  laws,  but  of  i)ersons 
resorting  thither  to  carry  on  a  traffic  (as  it  is  there  most  unfortu- 
nately deemed,  not  only  recognized  but  invited  by  the  institutions  of 
those  barbarous  communities.  But  it  is  unnecessary  to  pursue  this 
topic  further.  It  has  not  been  contended  in  argument,  that  the 
common  case  of  dealing  in  slaves  could  be  deemed  a  piracy  in  law. 
In  all  the  fervor  of  opinion  which  the  agitation  of  all  questions 
relating  to  this  practice  has  excited  in  the  minds  of  many  intelligent 
persons  in  this  country,  no  attempt  has  ever  been  thought  of,  at  least 
with  any  visible  effect,  to  submit  any  such  question  to  tlie  judg- 
ment of  the  law  by  such  a  prosecution  of  any  form  instituted  ia 
any  court ;  and  no  lawyer,  I  presume,  could  be  found  hardy  enough 
to  maintain,  that  one  indictment  for  piracy  could  be  sup}»orted  by 
the  mere  evidence  of  a  trading  in  slaves.  Be  the  malignity  of  the 
practice  what  it  may,  it  is  not  that  of  piracy  in  legal  consideration.*  *  * 
"  If  I  felt  it  necessary  to  press  the  consideration  further,  it  would 
be  by  stating  the  gigantic  mischief  which  such  a  claim  is  likely  to 
produce.  It  is  no  secret,  particularly  in  this  place,  that  the  right  of 
search  in  time  of  war,  though  unquestionable,  is  not  submitted  to 
without  complaints,  loud  and  bitter,  in  spite  of  all  the  modifications 
that  can  be  applied  to  it.  If  this  right  of  war  is  imported  into  peace 
by  convention  it  will  be  for  the  prudence  of  states  to  regulate  l)y  that 
convention  the  exercise  of  the  right  with  all  the  softenings  of  which 
it  is  capable. 


212  JURISDICTION   ON    THE   HIGH    SE.\S.  [rART  I. 

"  Treaties,  however,  it  must  be  remembered,  are  perishable  things, 
and  their  obhgations  are  dissipated  by  tlie  first  hostility.  The 
covenants,  however  solemn,  for  the  abolition  of  the  trade,  or  for 
the  exercise  of  modes  of  prevention,  co-exist  only  with  the  relations 
of  amity  among  the  confederate  states.  At  the  same  time  it  may 
be  hoped,  that  so  long  as  the  treaties  do  exist,  and  their  obligations 
are  sincerely  and  reciprocally  respected,  the  exercise  of  a  right, 
which /wo  tanto  converts  a  state  of  peace  into  a  state  of  war,  may  be 
so  conducted  as  not  to  excite  just  irritation.  But  if  it  be  assumed 
by  force,  and  left  at  large  to  operate  reciprocally  upon  the  ships  of 
every  state  (for  it  must  be  a  right  of  all  against  all),  without  any 
other  limits  as  to  time,  place,  or  mode  of  inquiry  than  such  as  the 
prudence  of  particular  states,  or  their  individual  subjects,  may  im- 
pose, I  leave  the  tragedy  contained  in  this  case  to  illustrate  the 
effects  that  are  likely  to  arise  in  the  very  first  stages  of  the  process, 
without  adding  to  the  account  what  must  be  considered  as  a  most 
awful  part  of  it,  the  perpetual  irritation  and  the  universal  hostility 
which  are  likely  to  ensue."  (For  other  cases  upon  the  subject  of  the 
slave  trade,  see  The  Amedie,  1  Acton's  Adm.  Rep. ,  240  ;  The  Fortu- 
na,  1  Dodson,  81 ;  The  Diana,  1  Dodson,  95 ;  Madrazo  v.  'Willes,  3 
Barnwell  &  Alderson,  353  ;  The  Antelope,  10  Wheaton,  66.  See, 
also,  Dana's  Wheaton,  pp.  203-213.) 


CHAPTER  IV. 

NATIONALITY, 


Section  22. — Indelible  Allegiance — Expatriation. 


OPINION  OF  COCKBURN. 

{Cockburn^ s  Nationality,  6-14.) 

"  Nationality  by  birth  or  origin  depends,  according  to  the  law  of 
some  nations,  on  tlie  place  of  birtli ;  according  to  that  of  others  on 
the  nationality  of  the  parents.  In  many  countries  both  elements 
exist,  one  or  other,  however,  predominating.  Thus,  by  the  law  of 
England,  the  status  of  a  subject  depends  generally  on  the  place  of 
birth :  nevertheless,  the  descendants,  of  a  natural-born  subject,  for 
two  generations,  though  born  out  of  the  dominions  of  the  Crown, 
are,  to  all  intents  and  purposes,  subjects.  In  like  manner,  by  tlie 
law  of  France,  though,  generally  speaking,  it  is  necessary  to  be 
born  of  French  parents  to  be  a  Frenchman,  an  exception  is  made  in 
favour  of  the  child  of  a  foreigner,  if  born  in  France,  subject  only  to 
the  condition  of  the  French  nationality,  being  claimed  within  a  i)re- 
scribed  period. 

"  By  the  common  law  of  England,  every  person  born  within  the 
dominions  of  the  Crown,  no  matter  whether  of  English  or  of  foreign 
parents,  and,  in  the  latter  case,  whether  the  parents  were  settled,  or 
merely  temporarily  sojourning  in  the  country,  was  an  English  sub- 
ject ;  save  only  the  children  of  foreign  ambassadors  (who  were  ex- 
cepted because  their  fathers  carried  their  own  nationality  with 
them),  or  a  child  born  to  a  foreigner  during  the  hostile  occupation 
of  any  part  of  the  territories  of  England.  No  effect  appears  to  have 
been  given  to  descent  as  a  source  of  nationality.  *  *  * 

"  The  law  of  the  United  States  of  America  agrees  with  our  own. 
The  law  of  England  as  to  the  effect  of  the  place  of  birth  in  the  mat- 
ter of  nationality  became  the  law  of  America  as  part  of  the  law 
of  the  mother  country,  which   the  original  settlers   carried  witli 

them.  *  *  * 

213 


214  ^^\TIONALITY.  [PAUT  I. 

"  By  the  law  of  France,  anterior  to  the  revolution,  a  child  born 
on  French  soil,  though  of  foreign  parents,  was  a  Frenchman,  as  it 
was  termed^  jit  re  soli;  a  child  born  of  French  jjtirents  out  of  French 
territory,  was  a  Frenchman  Jure  sanguinis.  The  framers  of  the 
Code  Xapoleon,  adopting  a  sounder  principle,  excluded  the  place  of 
birth  as  the  source  of  nationality  in  itself ;  but  compromising,  as  it 
were,  with  the  old  rule,  they  allowed  the  place  of  birth  to  have  ef- 
fect so  far  as  to  give  to  the  offspring  of  an  alien  the  right  of  claim- 
ing French  nationality  on  attaining  full  age.  The  example  set  by 
the  framers  of  the  French  Code  has  been  followed  by  the  nations 
by  which  that  Code  has  been  adopted,  as  also  by  others  in  remodel- 
ling their  Constitutions  or  Codes.  The  result  has  been  that,  through- 
out the  European  States  generally,  descent,  and  not  the  place  of 
birth,  has  been  adopted  as  the  primary  criterion  of  nationality, 
though  ^\ith  a  reservation  in  some,  of  a  right  to  persons  born  with- 
in the  territory  to  claim  nationality  within  a  fixed  period.  Thus, 
while  hi  some  of  these  countries  nationality  is  deriA-ed  from  parent- 
age alone,  in  others  the  right  becomes  complicated  by  i-eason  that 
in  addition  to  parentage,  birth  within  the  dominions  of  the  particu- 
lar country  confers  citizenship  on  the  offsfiring  of  alien  parents — 
in  some  absolutely — though  subject  to  the  right  of  the  individual 
concerned  to  reject  it  at  majority — in  others  on  the  right  being 
claimed  ou  certain  specified  conditions." 


MACDOXALD'S  CASE,  1745. 

(  Cockhuriis  Xationaliti/,  G4,  note.) 

Held,  that  it  Tivas  not  in  the  power  of  a  private  person  (subject  of  Great  Britain) 
to  shake  off  his  allegiajice  and  to  transfer  it  to  a  foreign  prince. 

"In  the  case  of  ^neas  Maalonald,  who  was  tried  for  high  trea- 
son, for  having  borne  arms  in  the  rel»elli(jn  of  1745,  it  appeared  that 
the  prisoner  had  been  born  in  England,  brought  up  from  his  early 
infancy  in  France,  had  in  his  riper  years  been  employed  in  that 
country,  and  tliat  he  held  a  commission  from  the  French  King. 

"  After  a  faint  attempt  to  make  out  that  the  prisoner  had  l)een 
bom  in  France,  his  c-ounsel,  despairing  of  establishing  that  fact,  ad- 
dressed the  jury  on  the  great  hardship  of  such  a  prosecution  against 
a  person  so  circumstanced,  and  si)eaking  of  the  doctrine  of  natural 
allegiance,  represented  it  as  a  slavish  principle,  derogating  from  the 
prhiciples  of  the  Revolution.  But  the  Court  interposed,  and  said 
it  never  was  doubted  that  a  subject-born,  taking  a  commission  from 


CHAP.  IV.]  MACDONALD's   CASE.  215 

a  foreign  Prince  and  conmiitting  high  treason,  may  be  punished  as  a 
subject  for  such  treason,  notwithstanding  his  foreign  commission ; 
that  it  was  not  in  the  power  of  any  private  person  to  shake  f)ff  his 
allegiance  and  to  transfer  it  to  a  foreign  prince  nor  was  it  in  the 
power  of  any  foreign  prince,  by  naturalizing  or  employing  a  subject 
,of  Great  Britain,  to  dissolve  the  bond  of  allegiance  between  that 
subject  and  the  Crown.  And  the  Lord  Chief  Justice  Lee,  in  charg- 
ing the  jury,  told  thein  that,  the  overt  acts  laid  in  the  indictment 
having  been  proved  against  the  prisoner,  and  admitted  by  him,  the 
only  fact  to  be  tried  by  them,  was  whetlier  he  was  a  subject  of 
Great  Britain ;  as  in  that  case  he  must  be  found  guilty. 

"  The  j)risoner  was  accordingly  found  guilty,  but  received  a  pardon 
on  condition  of  banishment."  ^ 

1  In  tlie  case  of  Isaac  Willlamfi,  1790,  Wharton's  State  Trials,  G52,  Ellsworth, 
C.  J.,  saitj:— 

"The  common  law  of  this  country  remains  the  same  as  it  v/as  before  the  Rev- 
ohilion.  The  present  question  is  to  be  decided  by  two  great  principles;  one  is, 
that  all  the  members  of  a  civil  community  are  bound  to  each  other  by  compact. 
The  other  is,  that  one  of  the  parties  to  tiiis  compact  cannot  dissolve  it  by  his  own 
act.  The  compact  between  our  community  and  its  members  is,  that  the  commu- 
nity will  protect  its  members;  and  on  the  part  of  the  members,  that  they  will  at 
all  times  be  obedient  to  the  laws  of  the  community  and  faithful  in  its  defence. 
This  compact  distinguishes  our  government  from  those  which  are  founded  in  vio- 
lence and  fraud.  It  necessarily  results,  that  the  members  cannot  dissolve  this 
compact,  without  the  consent  or  default  of  the  community.  There  has  been  here 
no  consent — no  default.  Default  is  not  pretended.  Express  consent  is  not 
claimed;  but  it  has  been  argued,  that  the  consent  of  the  community  is  implied  by 
its  policy — its  conditions,  and  its  acts.  *  *  *  Consent  has  been  argued  from  the 
acts  of  our  government,  permitting  the  naturalization  of  foreigners."  But  in  the 
opinion  of  the  Chief  Justice  no  such  inference  could  be  drawn  from  this  fact. 
When  foreigners  became  naturalized  in  the  United  States,  the  question  of  their 
right  to  renounce  their  native  allegiance  was  one  between  them  and  their  native 
country,  with  which  we  were  not  concerned. 

Proclamation  of  the  Prince  Regent,  July  24,  1814,  Cockburn's  Jfationality,  77: — 

"  A  proclamation  by  the  Prince  Regent,  of  the  24th  July,  especially  directed 
against  America,  after  prohibiting  all  natural-born  subjects  of  His  Majesty  from 
serving  in  the  ships  and  armies  of  the  United  States,  and  charging  all  such  per- 
sons at  once  to  quit  such  service,  proceeds  as  follows : 

"And  whereas  it  has  been  fiu'ther  represented  to  us  that  divers  of  our  natiu-al- 
born  subjects  as  aforesaid  have  been  induced  to  accept  Letters  of  Naturalization  or 
Certificates  of  Citizenship  from  the  said  United  States  of  America,  vainly  suppos- 
ing that  by  such  Letters  or  Certificates  they  are  discharged  from  that  duty  an  1 
allegiance  which,  as  our  natural-born  subjects,  they  owe  to  us:  Now  we  do  hereby 
warn  all  such  our  natural-born  subjects,  that  no  such  Letters  of  Naturalization  or 
Certificates  of  Citizenship  do,  or  can,  in  any  manner  discharge  our  natural-born 
subjects  of  the  allegiance,  or  in  any  degree  alter  the  duty  which  they  owe  to  us, 
their  natural  Sovereign.  *  *  * 

"  Moreover,  that  all  such,  our  subjcL-ts,  as   aforesaid,  who  have  voluntarily  en 


216  NATIONALITY.  1_PAET  I. 

3IESSAGE   OF   PRESIDEXT   GRAXT,    1873. 
(2  Wharton's  Digest,  312). 

"  I  invite  the  earnest  attention  of  Congress  to  the  existing  laws  of 
the  United  States  respecting  expatriation  and  the  election  of  nation- 
ality by  individuals. 

"  ^lany  citizens  of  the  United   States  reside  permanently  abroad 

tered,  or  shall  enter,  or  voluntarily  continue  to  serve  on  board  of  any  such  ships  of 
Avar,  or  in  the  land  forces  of  the  said  United  States  of  America,  at  enmity  with  us, 
are,  and  will  be   guilty  of  high  treason." 

Opinion  of  Chancellor  Kent: — From  the  ''historical  review  of  the  principal 
discussions  in  the  Federal  Courts  on  this  interesting  subject  in  American  jm-is- 
prudence,  the  better  opinion  would  seem  to  be,  that  a  citizen  cannot  renounce 
his  allegiance  to  the  United  States  without  the  permission  of  government,  to  be 
declared  by  law;  and  that,  as  there  is  no  existing  legislative  regulation  on  the 
cise,  the  rule  of  the  English  common  law  remains  unaltered."  (2  Kent's  Com- 
mentaries, p  63.) 

An  Act  concerning  American  citizens  in  foreign  States,  July  27,  186S. 

"  Whereas  tlie  right  of  expatriation  is  a  natural  and  inherent  right  of  all  people, 
indispensable  to  the  enjoyment  of  tlie  rights  of  life,  liberty,  and  the  pursuit  of 
happiness;  and  whereas  in  the  recognition  of  this  principle  this  Government  has 
freely  received  emigrants  from  all  nations,  and  invested  tliem  Mith  the  rights  of 
citizenship;  and  whereas  it  is  claimed  that  such  American  citizens,  witli  their 
descendants,  are  subjects  of  foreign  states,  owing  allegiance  to  the  governments 
thereof;  and  whereas  it  is  necessary  to  the  maintenance  of  public  peace  that  this 
claim  of  foreign  allegiance  should  be  promptly  and  finally  disavowed:  Therefore, 

"  Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled,  That  any  declaration,  instruction,  opinion, 
order,  or  decision  of  any  officers  of  this  Government  wliich  denies,  restricts,  im- 
pairs, or  questions  the  right  of  expatriation,  is  hereby  declared  inconsistent  with 
the  fundamental  principles  of  this  Government. 

"  Sec.  2.  And  be  it  further  enacted,  That,  all  naturalized  citizens  of  the 
United  States,  while  in  foreign  states,  shall  be  entitled  to  and  shall  receive  from 
this  Government,  the  same  protection  of  persons  and  property  that  is  accorded  to 
native-born  citizens  in  like  situations  and  circumstances. 

"  Sec.  3.  And  be  it  further  enacted.  That  whenever  it  shall  be  made  known  to 
the  President  that  any  citizen  of  the  United  States  lias  been  unjustly  deprived  of 
his  liberty  by  or  under  the  authority  of  any  foreign  government,  it  shall  be  the 
duty  of  the  President  forthwith  to  demand  of  that  government  the  reasons  for  such 
imprisonment,  and  if  it  appears  to  be  wrongful  and  in  violation  of  the  rights  of 
American  citizenship,  the  President  shall  forthwith  demand  the  release  of  such 
citizen,  and  if  the  release  so  demanded  is  unreasonably  delayed  or  refused,  it  shall 
be  the  duty  of  the  President  to  use  such  means,  not  amounting  to  acts  of  war,  as 
he  may  think  necessary  and  proper  to  obtain  or  effectuate  such  release,  and  all  the 
facts  and  proceedings  relative  thereto  shall  as  soon  as  practicable  be  communicated 
by  the  President  to  Congress." 


CHAP.  IV.]  MESSAGE    OF   PRESIDENT    GRANT.  217 

-with  their  families.  Under  the  provisions  of  the  act  approved 
February  10, 1855,  the  children  of  such  persons  are  to  be  deemed  and 
talven  to  be  citizens  of  the  United  States,  but  tlie  rights  of  citizenshi[) 
are  not  to  descend  to  persons  whose  fathers  never  resided  in  the 
United  States. 

"It  thus  happens  that  persons  wlio  have  never  resided  within  tlie 
United  States  have  been  enabled  to  put  forward  a  pretension  to  the 
Ijrotection  of  the  United  States  against  the  claim  tf)  military  service 
of  the  Government  under  whose  protection  they  were  l)orn  and 
have  been  reared.  In  some  cases  even  naturalized  citizens  of  the 
United  States  have  returned  to  tlie  land  of  their  birth,  with  intent 
to  remain  there,  and  their  children,  the  issue  of  a  marriage  contracted 
there  after  return,  and  who  have  never  been  in  the  United  States, 
have  laid  claim  to  our  protection,  when  the  lapse  of  many  years  had 
imposed  upon  them  the  duty  of  military  service  to  the  only  Govern- 
ment which  had  ever  known  them  personally. 

"  Until  the  year  1868  it  was  left  embarrassed  by  conflicting 
opinions  of  courts  and  of  jurists  to  determine  how  far  the  doctrine  of 
perpetual  allegiance  derived  from  our  former  colonial  relations  ^^■ith 
Great  Britain  was  applicable  to  American  citizens.  Congress  then 
wisely  swept  these  doubts  away  by  enacting  that  'any  declaration, 
instruction,  opinion,  order,  or  decision  of  any  officer  of  this  Govern- 
ment which  denies,  restricts,  impairs,  or  questions  the  right  of  expa- 
triation, is  hiconsistent  with  the  fundamental  principles  of  this 
Government.'  But  Congress  did  not  indicate  in  that  statute,  nor 
has  it  since  done  so,  what  acts  are  deemed  to  work  expatriation. 
For  my  own  guidance  in  determining  such  questions,  I  required 
(under  the  provisions  of  the  Constitution)  the  opinion  in  writing  of 
the  principal  officer  in  each  of  the  Executive  Departments  upon  cer- 
tain questions  relating  to  this  subject.  The  result  satisfies  me  that 
further  legislation  has  become  necessary.     I  therefore  commend  the 

An  Act  concerning  Aliens  and  British  Subjects,  May  12,  ISTO.  Extract  : — "  4. 
Any  per.:on  who  by  reason  of  his  having  been  born  within  the  dominions  of  Iler 
Majesty  is  a  uatural-born  subject,  but  who  also  at  the  time  of  liis  birth  became, 
under  the  law  of  any  foreign  state,  a  subject  of  such  state,  and  is  still  such  subject, 
may,  if  of  full  age  and  not  under  any  disability,  make  a  declaration  of  alienage  in 
n\anner  aforesaid,  and  from  and  after  the  making  of  such  declaration  shall  cease 
to  be  a  British  subject.  5.  From  and  after  the  passing  of  this  act  an  alien  shall 
not  be  entitled  to  be  tried  by  a  jury  de  medietate  linyuce,  but  shall  be  triable  m 
the  same  manner  as  if  he  were  a  natural-born  subject.  "  6.  Any  British  subject 
who  has  at  any  time  before,  or  may  at  any  time  after  the  passing  of  tliis  act,  when 
in  any  foreign  state  and  not  under  any  disability,  voluntarily  become  naturalized 
in  such  state,  shall,  from  and  after  the  time  of  his  so  having  become  naturalized  in 
such  foreign  state,  be  deemed  to  have  ceased  to  be  a  British  subject  and  be  regarded 
as  an  alien;"  etc. 


218  NATION ALTTY.  [PAT^T  I. 

subject  to  the  careful  consideration  of  Congress,  and  I  transmit  here- 
with copies  of  the  several  opinions  of  tlie  principal  officers  of  the 
Executive  De[)artuient,  togetlier  witli  otlier  correspondence  and 
pertinent  information  on  the  same  subject. 

"  The  United  States,  Avho  led  the  wa}'  in  tlie  overthrow  of  the 
feudal  doctrine  of  perpetual  allegiance,  are  among  the  last  to  indicate 
how  their  own  citizens  may  elect  another  nationality.  The  papers 
submitted  herewith  indicate  what  is  necessary  to  place  us  on  a  par 
witli  other  leading  nations  in  liberality  of  legislation  on  this  interna- 
tional question.  We  have  already  in  our  treaties  assented  to  the 
principles  whicli  would  need  to  be  embodied  in  laws  intended  to 
accomplish  such  results.  Wehave  agreed  tliat  citizens  of  tlie  United 
States  may  cease  to  be  citizens,  and  may  voluntarily  render  alle- 
giance to  other  powers.  We  have  agreed  that  residence  in  a  foreign 
land,  without  intent  to  return,  shall  of  itself  work  expatriation.  We 
have  agreed  in  some  instances  upon  the  length  of  time  necessary  for 
such  continued  residence  to  work  a  presumption  of  such  intent." 


ALIBERT'S  CASE,  1852. 

(Report  on  Naturalization,  United  States,  p.  133.) 

A  citizen  of  France  loses  liis  French  nationality  by  being  naturalized  in  a  foreign 
state. 

Alibert  was  a  native  of  Digue,  Basses  Alpes.  lie  went  to  the 
United  States  in  1838,  at  the  age  of  18,  and,  after  going  through  the 
usual  formalities,  was  naturalized  in  1846.  In  1852  he  returned  to 
France  and  was  arrested  while  on  a  visit  to  Digne  as  an  "insoumis" 
of  1889,  and  pleaded  his  naturalization  as  exempting  him  from  serv- 
ice. The  United  States  consul  at  Marseilles  applied  to  the  general 
commanding  the  district,  who  informed  him  that  Alibert's  claim  was 
founded  in  right,  if  his  naturalization  was  really  dated  in  1846,  as 
his  naturalization  would  incapacitate  him  fi'om  serving  in  the  French 
army,  and  the  date  of  it  would  prove  that  more  than  three  years  had 
elapsed  since  the  offense  was  connnitted  (that  being  the  period  of 
limitation  required  by  the  penal  code),  and  that  he  could  not  conse- 
quently be  proceeded  against  for  insubordination.  Nevertheless 
Aliljert  was  brought  l)efore  a  "conseil  de  guerre  "  at  Marseilles,  and 
condemned  to  a  month's  imprisonment. 

Tlie  cause  was  then  brought  by  appeal  before  a  superior  military 


CHAP.  IV.]  EX   PARTE   CHAX   SAN    HEE.  219 

court  at  Toulon,   and  the  sentence  quashed,  thereby  establishing 

Alibert's  immunity  from  conscrii)tion.^ 


Section  23. — Citizexsuip — Naturalization". 


Ex  Parte  CIIIX  KING. 

Ex  Parte  CIIAX  SAN  HEE. 

U.  S.  Circuit  Court  for  Oregon,  1888. 

(35  Federal  Reporter,  354.) 

Children  born  in  tlie  United  States  of  Cliiuese  parents  are  citizens  of  tlie  United 
States. 

Application  for  writ  of  habeas  corpus. 

Deady,  J. — "  The  writ  of  habeas  corpus  in  these  cases  was  allowed 
and  issued  on  June  25,  1888,  and  they  were  heard  together  on  the 
same  day. 

"  The  petition  of  Chin  King  states  that  she  was  born  in  San  Fran- 
cisco, Cal.,  on  October  10,  18G8  ;  while  that  of  Chan  San  llee  states 
that  she  was  born  in  Portland,  Or.,  on  March  15,1878;  and  they 
each  state  that  they  are  restrained  of  their  liberty  by  William  Robert 
Laird,  the  master  of  the  British  bark  '  Kitty,'  because  the  collector 
of  customs  for  this  port  refuses  to  allow  them  to  land  from  said  bark 
on  the  ground  that  the  petitioners  are  Chinese,  and  have  no  return 
certificate,  as  required  by  the  act  of  Congress  on  that  subject ;  but 

1  In  the  case  of  Micliael  Zeiter,  1809,  before  the  court  of  first  instance  of  Wis- 
sembourg,  tlie  question  was  whether  he  wa?  exempt  from  military  service.  And 
this  depended  upon  whether  he  was  a  citizen  of  France,  for,  by  the  2d  article 
of  the  law  of  March  21,  1832,  as  the  court  say,  "nul  ne  peut  etre  admis  dans  les 
troupes  fran(;aises  s'il  n'est  fran(;ais." 

Zeiter  contended  that  he  had  been  naturalized  in  the  United  States,  and  had 
thereby  lost  his  French  nationality.  The  court  assented  to  this  view  of  the  law 
but  demanded  further  proof  of  his  naturalization  in  America.  When  he  had  jiro- 
cured  satisfactory  proofs,  the  court  decreed  as  follows: 

"  Attendu  que,  par  la  production  du  certificat  qui  lui  a  ete  delivre  le  vingt-huit 
mai  dernier,  par  le  consul  des  Etats  Unis  a  Paris,  et  qui  a  ete  enregistre  a  Wissem- 
bourg  aujourd'hui,  le  demandeur  a  justifie  qu'il  est  citoyen  americain:  le  tribunal 
donne  acte  au  demandeur  dc  ce  que,  par  la  production  du  dit  certificat,  il  a  satisfait 
au  jugement  rendu  en  ce  siege  le  viugt-cinq  avril  dernier. 

"En  consequence  dit  et  reconnait  que  le  demandeur.  Michel  Zeiter,  par  sa 
naturalisation  en  pays  etrauger,  a  perdu  la  qualitc  de  frangais." 


220  NATIONALITY.  [PART  I. 

thev  aver  that  they  are  native-born  citizens  of  the  United  States  and 
therefore  not  inehided  within  tlie  terms  of  said  act. 

"The  return  of  the  master  to  each  writ  states  that  the 'Kitty' 
sailed  from  Hong  Kong  for  Portland,  on  April  19,  1888,  and  that  the 
jietitioners  were  passengers  thereon  during  said  voyage,  and  are  now 
in  custody  on  board  the  same,  for  the  reasons  stated  in  the  petitions. 

"  On  application  the  United  States  district  attorney  was  allowed 
to  intervene  on  behalf  of  the  United  States,  and  allege  that  he  had 
no  knowledge  or  information  sufficient  to  form  a  belief,  as  to  whether 
the  petitioners  were  born  in  the  United  States,  as  alleged,  or  not. 

"  On  the  hearing  it  appeared  that  Chung  Yip  Gen  is  a  Chinese 
merchant,  who  has  lived  and  done  business  in  this  city  for  the  past 
13  years  and  for  12  years  prior  thereto  in  San  Francisco ;  that  he 
was  married  in  San  Francisco  about  2.3  years  ago,  and  the  petitioners 
are  his  daughters,  the  older  one  having  been  born  in  San  Francisco, 
and  the  younger  one  in  Portland,  and  tbat  in  1881  the  father  sent 
them  and  their  mother  to  China,  from  whence  they  were  to  return 
when  they  pleased. 

"  By  the  common  law,  a  child  born  within  the  allegiance — the 
jurisdiction — of  the  United  States,  is  born  a  subject  or  citizen  there- 
of, without  reference  to  the  political  status  or  condition  of  its  parents. 
Mcluny  v.  Campbell,  2  Sawy.,  118  ;  In  re  Look  Tin  >Sinr/,  10  Sawy.,  3.53 ; 
21  Fed.  Rep.,  905 ;  Z>/nch  v.  Clarke,  1  Sandf.  Ch.,  583.  In  the  latter 
case  it  was  held  that  Julia  Lynch,  who  was  born  in  New  York  in 
1849,  of  alien  parents  during  a  temporary  sojourn  by  them  in  that 
city,  and  returned  with  them  the  same  year  to  their  native  country, 
where  she  resided  until  her  death,  was  an  American  citizen. 

"The  vice-chancellor,  after  an  exhaustive  examination  of  the  law, 
declared  that  every  citizen  honi  within  the  dominion  and  allegiance 
of  tlie  United  States  was  a  citizen  thereof,  without  reference  to  the 
situation  of  his  parents. 

"  This,  of  course,  does  not  include  the  children  born  in  the  United 
States  of  parents  engaged  in  the  diplomatic  service  of  foreign  gov- 
ernments, whose  residence,  in  contemplation  of  jtublic  law,  is  a  part 
of  their  own  country. 

"  The  rule  of  the  common  law  on  this  subject  has  been  incorpo- 
rated into  the  fundamental  law  of  the  land. 

"  The  fourteenth  amendment  declares  :  '  All  persons  born  or  natu- 
ralized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States,  and  of  the  state  wherein  they 
reside.' 

"  In  ///  re  Look  Tin  Siin/,  10  Sawy.,  353  ;  21  Fed.  Rep.,  905,  it  was 
held  tliat  a  person  born  within  the  United  States,  of  Chinese  parents, 


CHAP.  IV.]        EX  TAKTE  CHAN  SAX  HEE.  221 

not  eno-aged  in  any  diplomatic  or  official  capacity  under  the  emperor 
of  China,  is  a  citizen  of  the  United  States.  The  case  is  similar  to 
that  of  the  petitioners.  The  party  in  question  was  born  in  California 
in  1870,  of  Chinese  pai-ents.  In  1879,  he  went  to  China,  and  returned 
to  California  in  1884,  without  the  certificate  provided  for  in  the  re- 
striction act  of  1882,  or  that  of  1884,  and  was  therefore  denied  the 
right  to  land. 

"Mr.  Justice  Field,  in  delivering  the  opinion  of  the  court,  in  which 
Sawyer,  Sabin,  and  Hoffman  concurred,  says  (p.  359) :  '  The  inability 
of  persons  to  become  citizens  under  those  laws  (of  naturalization)  in 
no  respect  impairs  the  effect  of  their  birth,  or  of  the  birth  of  their 
children,  upon  the  status  of  either,  as  citizens  of  the  United  States.' 

"  The  only  point  made  by  the  district  attorney  against  the  peti- 
tioners on  the  question  of  their  citizenship  is  that  they  left  this 
country  without,  as  he  claims,  any  definite  or  fixed  purpose  to 
return. 

"  But  I  think  the  evidence  does  not  Avarrantso  strong  a  statement. 
For  aught  that  appears  they  intended  to  return;  and  the  fact  that 
they  have  returned  gives  strength  to  the  inference.  The  most  that 
can  be  said  is,  there  was  no  time  fixed  for  their  return.  And  that  is 
the  case  with  hundreds  of  minor  American  citizens,  who  go  abroad 
yearly  for  nurture  and  education.  But  it  seems  that  the  citizenship 
of  the  petitioners  would  not  be  affected  by  the  fact,  if  they  had 
never  come  back,  unless  it  also  appears  that  they  had  in  some  formal 
and  affirmative  way  renounced  the  same. 

"  However,  in  my  judgment,  a  father  cannot  deprive  his  minor 
child  of  the  status  of  American  citizenship,  impressed  upon  it  by  the 
circumstances  of  its  birth  under  the  Constitution  and  within  the 
jurisdiction  of  the  United  States. 

"This  status^  once  acquired,  can  only  be  lost  or  changed  by  the 
act  of  the  party  when  arrived  at  majority,  and  the  consent  of  the 
government. 

"  By  section  2  of  article  4  of  the  Constitution  it  is  provided  :  '  The 
citizens  of  each  state  shall  be  entitled  to  all  privileges  and  innnuni- 
ties  of  citizens  in  the  several  states.' 

"  It  has  always  been  held  that  the  privileges  and  innuunities 
there  referred  to  are  fundamental ;  and  that  a  citizen  of  one  state 
may  at  least,  under  this  provision,  pass  through  or  reside  in  any 
other  state  of  the  union  for  the  ordinary  pursuits  or  purposes  of  life. 
Corfield\.  Coryell,  4  Wash.  C.  C,  380 ;  Faidv.  Virginia,  8  Wall.,  180. 

"The  action  of  the  collector  in  these  cases  has  the  effect,  and  is  so 
intended,  to  deny  these  citizens  of  the  United  States  the  right  of  free 
locomotion  within  the  same,— the  right  to  come  into,  pass  through, 


222  NATIONALITY.  [part  I. 

or  reside  in  this  state,  and  is  therefore  contrary  to  and  in  viohition  of 
the  constitutional  provision  guaranteeing  such  right  to  every  citizen. 
Sections  751,  752,  and  753  of  the  Revised  Statutes  provide,  in  effect, 
that  tlie  courts  of  the  United  States  and  the  judges  thereof  shall 
have  power,  by  Jiabeas  corpus^  to  deliver  a  person  held  in  custody  or 
restrained  of  liis  liberty  in  violation  of  the  Constitution  or  of  a  law 
or  treaty  of  the  United  States. 

"  The  petitioners,  as  we  have  seen,  are  restrained  of  their  liberty 
in  violation  of  the  Constitution,  and  therefore  this  court  has  juris- 
diction to  discharge  them  on  Juiheas  corpi/s. 

"  The  petitioners  are  discharged  from  custody." 


IIAUSDIXG'S  CASE. 

Fkelixghtjtsex,  Sec.  of  State,  to  Kasson^,  1885. 

(2  MliartoiisDlrjest,  399.) 

Children  born  in  the  United  States  of  aUen  parents,  and  never  dwelling  in  the 
United  States  are  not  citizens  thereof. 

The  "case  of  Ludwig  Hausding,  appears  to  have  been  decided 
according  to  the  law  and  the  facts.  It  is  stated  that  having  been 
born  in  the  United  States  of  a  Saxon  subject,  he  was  removed  to  his 
fathei-'s  native  land,  where  he  has  ever  since  remained,  although  his 
father  has  subsequently  become  a  citizen  of  the  United  States.  You 
refused  a  passport  on  the  ground  that  the  applicant  was  born  of 
Saxon  subjects,  temporarily  in  the  United  States,  and  was  never 
'  dwelling  in  the  United  States,'  either  at  the  time  of  or  since  his 
parent's  naturalization,  and  that  he  was  not,  therefore,  naturalized 
by  force  of  the  statute,  section  2172,  Revised  Statutes. 

"  It  does  not  appear  from  your  statement  whether  Wilhelm  Haus- 
ding, the  father,  had  declared  his  intention  to  become  an  American 
citizen  before  the  birth  of  Ludwig.  While  this,  if  it  were  established, 
would  lend  an  appearance  of  hardship  to  an  adverse  decision  upon 
his  claim  to  be  deemed  a  citizen,  yet,  even  in  this  case,  as  the  stat- 
utes stand,  your  decision  would  conform  to  the  letter  of  the  law, 
section  2168,  which  admits  to  citizenship,  on  taking  the  oath  pre- 
scribed by  law,  the  widow  and  children  of  an  alien  who  has  declared 
his  intention  but  dies  Itefore  completing  his  naturalization. 

"  By  providing  for  special  exemption  excludes  the  idea  of  any 
other  exemption,  as  for  instance  in  the  case  of  the  non-completion  of 


CHAP.  IV.]  EMDEN'S   CASE.  223 

the  father's  naturalization  before  the  permanent  removal  of  the 
minor  son  from  the  jurisdiclion  of  the  United  .States. 

"Not  being  naturalized  by  force  of  the  statute,  Ludwig  Ilausding 
could  only  assert  citizenship  on  the  ground  of  birth  in  the  United 
States  ;  but  this  claim  would,  if  presented,  be  untenable,  for  by  sec- 
tion 1992,  Revised  Statutes,  it  is  made  a  condition  of  citizenship  by 
birth  that  the  person  be  not  subject  to  any  foreign  power. 

"  This  last  consideration  serves  only  to  answer  the  '  quaere '  ^\■hieh 
you  annex  to  your  statement  of  the  Ilausding  case. 

"  You  ask :  '  Can  one,  born  a  foreign  subject,  but  williiii  the  United 
States,  make  the  option  after  his  majority,  and  Avliile  still  living 
abroad,  to  adopt  the  citizenship  of  his  birthi)lace?  It  seems  not, 
and  that  he  must  change  his  allegiance  by  emigration  and  legal 
process  of  naturalization.'  Sections  1992  and  1093  of  the  I  revised 
Statutes  clearly  show  the  extent  of  existing  legislation  ;  that  the 
fact  of  birth,  under  circumstances  implying  alien  subjection,  estab- 
lishes of  itself  no  right  of  citizenship  ;  and  that  the  citizenship  of  a 
person  so  born  is  to  be  acquired  in  some  legitimate  manner  through 
the  operation  of  statute.  No  statute  contemplates  the  acquisition 
of  the  declared  character  of  an  American  citizen  by  a  person  not  at 
the  time  within  the  jurisdiction  of  the  tribunal  of  record  which  con- 
fers that  character. " 


EMDEN'S  CASE. 

Porter,  Actixg  Sec.  of  State,  to  Wixchesteb,  1885. 

(2  ]]ltarton's  Dlypst,  410.) 

Children  born  abroad  of  citizens  of  the  United  States  and  continuing  to  reside 
abroad,  are  not  citizens  thereof  unless  they  elect  to  become  such  on  coming  of  age. 

rjobertEmden  was  born  in  Switzerland,  in  1SG2,  and  at  the  time  of 
his  application  in  1885  for  a  passport,  had  never  been  in  the  I'nited 
States.  His  father,  a  Swiss  by  origin,  was  naturalized  in  New  Vork 
in  1854,  but  soon  afterwards  returned  to  Switzerland,  where  he  con- 
tinued afterwards  to  reside. 

"  Undoubtedly,  by  the  law  of  nations,  an  infant  child  partakes 
of  his  father's  nationality  and  domicile.  But  there  are  two  difficul- 
ties in  the  way  of  applying  this  rule  to  the  present  case.  In  the  first 
place  a  parent's  nationality  cannot,  especially  when  produced  by 
naturalization,  be  presumed  to  be  adhered  to  after  a  residence  in  the 
country  of  origin  for  so  long  a  period  as  in  the  present  case. 


224  NATIONALITY.  [PAET  I. 

"  In  the  second  place,  the  rule  as  to  children  only  applies  to  minors, 
since  when  the  child  becomes  of  age  he  is  required  to  elect  between 
the  country  of  his  residence  and  the  country  of  his  alleged  technical 
allegiance.  Of  this  election  two  incidents  are  to  be  observed  :  when 
once  made  it  is  final ;  and  it  requires  no  formal  act,  but  may  be 
inferred  from  the  conduct  of  the  party  from  whom  the  election  is 
required. 

"Applying  these  tests  to  the  present  case  it  can  hardly  be  said 
that  Mr.  Robert  Emden's  claim  to  be  a  citizen  of  the  United  States 
is,  as  a  matter  of  international  law,  made  out.  Tiie  burden  of  proof 
is  always  on  the  applicant  for  the  passport,  and  here  there  is  no 
evidence  to  prove  either  his  father's  non-abandonment  of  his  United 
States  citizenship,  or  his  own  election  of  such  citizenship,  save  the 
applications  of  father  and  son  for  passports." 


A  PRUSSIAN  SUBJECT. 

Opixiox  of  the  Att.-Gexeral,  1875. 

(2  Wharton's  Dlyest,  412.) 

Under  the  treaty  between  the  United  States  and  the  North  German  Confedera- 
tion of  1808,  a  Prussian  by  birth,  natiu'alized  in  the  United  States,  is  jiresumed  to 
have  renounced  his  American  citizenship,  if  he  returns  to  Prussia,  and  resides  there 
two  years. 

"  A  Prussian  subject  by  birth  emigrated  to  the  Ignited  States  in 
1848,  became  naturalized  in  1854,  and  shortly  afterwards  returned  to 
Germany  w'ith  his  family,  in  which  was  a  son  born  in  the  United 
States,  and  became  domiciled  at  "Wiesbaden,  where,  together  with 
his  family,  he  has  since  continuously  resided.  The  son  having 
reached  the  age  of  twenty  years,  has  been  called  upon  by  the  Ger- 
man Government  for  military  duty.  The  father  invoked  the  inter- 
vention of  the  United  States  legation  at  Berlin,  but  declined  in  be- 
half of  the  son  to  give  any  assurance  of  intention  on  the  part  of  the 
latter  to  return  to  the  United  States  within  a  reasonable  time  and 
assume  his  duties  as  a  citizen. 

"  Article  IV.  of  the  naturalization  treaty  between  the  United  States 
and  Xorth  Germany  of  18G8,  reads  as  follows  :  '  If  a  German  natur- 
ahzed  in  America  renews  his  residence  in  Xorth  Germany  without 
intent  to  return  to  America,  he  shall  be  held  to  have  renounced  his 
naturalization  in  the  United  States.  *  *  *  The  intent  not  to  return 
may  be  held  to  exist  when  the  person  naturalized  in  the  one  coun- 
try resides  more  than  two  years  in  the  other  country.' 


CHAP.  TV.]  WAGNEIl's    CASE.  225 

"  It  was  held  (1)  that  under  the  al)Ove  article,  the  father  must  be 
deemed  to  have  abandoned  his  American  citizenship  and  to  have  re- 
sumed the  German  nationality;  (2)  that  the  son,  bein-,^  a  minor,  ac- 
quired under  the  laws  of  Germany  the  nationality  of  his  father,  but 
did  not  thereby  lose  his  American  nationality;  (;})  that  upon  attain- 
ing his  majority,  the  son  may,  at  his  own  election,  return  and  take; 
the  nationality  of  his  birth  or  remain  in  Germany  and  retain  his  ac- 
quired nationality  ;  (4)  yet  that  dui'ing  his  minority  and  while  domi- 
ciled with  his  father  in  Germany,  he  cannot  rightfully  claim  exemp- 
tion from  military  duty  there." 


Section  24. — Protectiox  to  Citizens  Abroad. 


WAGNER'S  CASE. 

Feelinghuysen,  Sec.  of  State,  to  Hunt,  1883. 

(  2  Wharton's  Digest,  ;192.) 

What  are  the  rights  of  a  foreign  minor  mIio  emigrates  to  tlie  United  States,  and 
becomes  naturaHzed  there,  and  tlien  returns  to  his  native  land  ?  May  he  be  forced 
to  serve  in  tlie  army  of  his  original  State  ? 

"  From  the  responses  previously  made  to  your  inquiries  in  Mr. 
Wagner's  behalf,  it  appears  that  the  brunt  of  the  charge  against 
him  was  that  he,  a  minor,  quitted  Russian  jurisdiction  in  advance  of 
attaining  the  age  when  he  might  have  been  called  upon  for  military 
service.  He  Avas  born  at  Lodz,  1852,  and  in  1874  became  liable  to 
military  service.  He  came  to  the  United  States  in  18G9,  five  yeais 
before  the  liability  could  rest  upon  him.  When  the  technical  of- 
fense, styled  evasion  of  military  duty,  which  is  the  sole  charge 
against  him,  began  to  exist  as  a  tangible  accusation,  Reinhardt 
Wagner  had  already,  by  residence  in  the  United  States  for  more 
than  three  years  preceding  his  majority,  acquired  under  our  statutes 
the  preliminary  rights  of  citizenship.  No  nation  should  assert  an 
absolute  claim  over  one  of  its  subjects  under  circumstances  like 
these,  audit  is  thought  improbable  that  Russia  will  persist  in  such  a 
claim,  even  if  made.  There  would  be  no  limit  to  such  a  pretension, 
for  the  taking  of  a  male  infant  out  of  Russia  might  be  regarded 
with  equal  propriety  as  an  '  evasion '  of  eventual  military  service. 

"  It  is  tantamount  to  asserting  a  right  to  punish  any  male  Rus- 
15 


226  NATIONALITY.  [PART  I. 

sian  who,  having  quitted  "Russian  territory  and  become  a  citizen  of 
another  state,  may  afterward  return  to  Russia. 

"  This  claim  is  different  from  that  put  fortli  by  some  governments 
for  the  completion  of  military  duty  fully  accruing  while  the  subject 
is  within  their  jurisdiction,  and  actually  left  unfulfilled.  It  is,  for 
example,  claimed  that  a  subject  who  leaves  the  country  when  called 
upon  to  serve  in  the  army,  and  becomes  a  citizen  or  subject  of  an- 
other state,  may,  if  he  returns  to  the  former  jurisdiction  while  yet 
of  age  for  military  duty,  be  compelled  to  serve  out  his  term.  This 
rule  appears  harsh  to  us,  and  yet  it  goes  no  further,  as  a  matter  of 
fact,  than  a  contention  that  an  obligation  of  service  accruing  and 
unpaid  while  the  subject  is  a  resident  of  the  country,  continues,  and 
is  to  be  extinguished  in  kind  by  performance  of  the  alleged  defaulted 
service. 

"  But,  harsh  as  it  is,  it  is  wholly  different  from  the  infliction  of 
vindictive  punishment,  as,  for  instance,  exile  for  the  constructive 
evasion  of  an  inchoate  obligation.  To  exact  the  fulfillment  of  an 
existing  obligation  is  one  thing ;  to  inflict  corporal  punishment  for 
not  recognizing  a  future  contingent  obligation  is  another." 


KOSZTA'S  CASE. 

{Cockhnrn's  yafionality,  118.) 

Status  of  a  foreigner  who  has  "declared  his  intention  "  to  become  a  citizen  of 
the  United  States,  and  wlio  has  a  domicil  in  the  country,  when  he  is  temporarily 
out  of  their  jurisdiction. 

Koszta  was  a  Hungarian,  and  one  of  the  refugees  of  1848-9.  He 
went  to  Turkey,  where  he  was  arrested  and  imprisoned  at  Kutahieh, 
but  released  on  condition  of  leaving  the  country.  He  went  to  the 
United  States  and  made  the  usual  declaration  of  an  intention  to  be- 
come naturalized.  In  1853  he  returned  to  Turkey,  and  went  to 
Smyrna  on  commercial  business,  and  there  obtained  from  the  United 
States'  Consul  a  traveling  pass,  stating  that  he  was  entitled  to 
American  protection.  On  the  21st  of  June,  1853,  he  was  seized  by 
some  persons  in  the  pay  of  the  Austrian  Consulate  and  taken  out 
into  the  harbor  in  a  boat ;  he  was  then  thrown  into  the  sea,  and 
was  picked  up  by  a  boat  from  the  Austrian  man-of-war  "  Hussar." 
The  United  States  Consul  Avent  on  board  to  remonstrate,  but  the 
Captain  of  the  "  Hussar  "  persisted  in  retaining  Koszta.  Thereupon 
the  United  States'  Charge  d' Affaires  at  Constantinople  requested 


CIlAr.  IV.]  KOSZTA'S   CASE.  227 

the  Captain  of  the  United  States'  ship  of  war  "  St.  Louis  "  to  demand 
Ivoszta's  release,  and,  if  necessary,  to  have  recourse  to  force. 

The  "St.  Louis  "  accordingly  went  to  Smyrna,  and  the  Captain 
in  pursuance  of  his  instructions,  stated  to  the  Commander  of  the 
"  Hussar  "  that  unless  Koszta  was  at  once  delivered  to  him  he  should 
take  him  by  force  of  arms. 

As  a  conflict  between  the  two  ships  of  war  would  have  been 
attended  with  great  danger  to  the  shipping  in  the  port  and  to  the 
town,  the  French  Consul  offered  his  mediation,  and  Koszta  was  then 
given  over  to  his  care  to  be  kept  until  the  decision  of  the  respective 
governments  was  ascertained. 

On  the  29th  of  August,  1853,  the  Austrian  Charge  d' Affaires  at 
Washington  presented  a  formal  remonstrance  to  the  United  States 
Government,  protesting  against  the  claim  of  the  United  States  to 
afford  protection  to  Koszta,  and  calling  on  them  to  disavow  the  con- 
duct of  their  agents  and  to  grant  reparation  for  the  insult  oft'ered  to 
the  ^Vustrian  flag. 

Mr.  Marcy  replied  on  the  26th  of  September,  1853,  contending, 
first,  for  the  general  right  of  every  citizen  or  subject,  "having  faith- 
fully performed  the  past  and  present  duties  resulting  from  his  rela- 
tion to  tlie  Sovereign  Power,  to  release  himself  at  any  time  from  the 
obligation  of  allegiance,  freely  quit  the  land  of  his  birth  and  adop- 
tion, seek  through  all  countries  a  home,  or  select  anywhere  that  which 
offers  him  the  fairest  prospect  of  happiness  for  himself  and  his  pos- 
terity ;  "  secondly,  that  Koszta  was  not  an  Austrian  subject,  as  by  a 
"decree  of  the  Emperor  of  Austria  of  the  24th  of  March,  1832,  Aus- 
trian subjects  leaving  the  dominions  of  the  Emperor  without  permis- 
sion of  the  magistrate  and  a  release  of  Austrian  citizenship,  and  with 
an  intention  never  to  return,  become  '  unlawful  emigrants,'  and  lose 
all  their  civil  and  political  rights  at  home."  Thirdly,  Mr.  Marcy  put 
forward  the  somewhat  startling  proposition  that  although  Koszta 
had  not  yet  been  naturalized  and  become  a  citizen  of  the  L'nited 
States,  yet  having  become  domiciled  in  the  latter  country,  he  was 
entitled  to  be  treated  in  all  respects  as  a  citizen  of  the  United  States. 
In  support  of  this  proposition  ]Mr.  Marcy  writes  as  follows :  — 

"  It  is  an  error  to  assume  that  a  nation  can  properly  extend  its 
protection  only  to  native-born  or  naturalized  citizens.  This  is  not 
the  doctrine  of  international  law,  nor  is  the  practice  of  nations  cir- 
cumscribed within  guch  narrow  limits.  This  law  does  not,  as  has 
been  before  remarked,  complicate  questions  of  this  nature  by  respect 
for  municipal  codes.  In  relation  to  this  subject  it  has  clear  and  dis- 
tinct rules  of  its  own.  It  gives  the  national  character  of  the  country, 
not  only  to  native-born  and  naturalized  citizens,  but  to  all  residents 


228  NATIONALITY.  [l^VKT  I. 

in  it  ^ho  are  there  with,  or  even  -vvitliont,  an  intention  to  become 
citizens,  provided  they  have  a  domicile  therein.  Foreigners  may,  and 
often  do,  acqnire  a  domicile  in  a  country,  even  though  they  have 
entered  it  with  the  avowed  intention  not  to  become  naturalized 
citizens,  but  to  return  to  their  native  land  at  some  remote  and  un- 
certain ]KM-iod,  and  whenever  they  aequii-e  a  domicile,  international 
law  at  once  impresses  upon  them  the  national  character  of  the 
country  of  that  domicile. 

"  It  is  a  maxim  of  international  law  that  domicile  confers  a  national 
character ;  it  does  not  allow  any  one  who  has  a  domicile  to  decline 
the  national  character  thus  conferred ;  it  forces  it  upon  him  often 
very  much  against  his  will,  and  to  his  great  detriment.  International 
law  looks  only  to  the  national  character  in  determining  what  country 
has  the  right  to  protect.  If  a  person  goes  from  this  country  abroad, 
with  the  nationality  of  the  United  States,  this  law  enjoins  upon  other 
nations  to  respect  him,  in  regard  to  protection,  as  an  American 
citizen.  It  concedes  to  every  country  tlie  right  to  protect  any  and 
all  who  may  be  clothed  with  its  nationality." 


TOUSIG'S  CASE,  1854 

(Laivrence'a  Wheaton,  Ed.  of  ISm.  929.) 

A  foreigner  who  has  "declared  his  intention  ''  to  become  a  citizen  of  the  United 
States  is  not  entitled  to  their  protection  if  he  returns  to  his  native  country. 

Tousig,  a  native  of  Austria,  had  acquired  a  domicile  in  the  United 
States,  but  had  not  become  naturalized.  Tie  returned  to  Austria, 
with  an  American  state  passport,  and  was  arrested  on  the  charge  of 
offenses  committed  before  leaving  Austria.  lie  appealed  tc  the 
United  States  ^Minister  for  protection,  and  the  latter  having  brought 
the  case  before  the  state  department,  Mr.  Marcy,  on  the  lOtli  Jan- 
uary, 1854,  writes  to  Mr.  Jackson,  Charge  d'  Affaires  at  Vienna,  as 
follows  : — 

"I  have  carefully  examined  your  despatches  reflating  to  the  case 
of  Simon  Tousig,  and  regret  to  find  that  it  is  one  whieli  will  not  au- 
thorize a  more  effective  interference  than  that  which  you  have  already 
made  in  his  behalf.  It  is  true  he  left  this  country  with  a  passport 
issued  from  this  department ;  but  as  he  was  neither  a  native-born 
nor  naturalized  citizen,  he  was  not  entitled  to  it.  It -is  only  to  citi- 
zen   that  passports  are  issued. 

"  Assuming  all  that  could  possibly  belong  to  Tousig's  case, — that 


CHAP.  IV.]  tousig's  case.  229 

he  had  a  domicile  here  and  was  actually  clothed  with  the  nationality 
of  the  United  States,— there  is  a  feature  in  it  which  distinguishes  it 
from  that  of  Koszta.  Tousig  voluntarily  returned  to  Austria,  and 
placed  himself  within  the  reach  of  her  municipal  laws.  He  went  hy 
his  free  act  under  their  jurisdiction,  and  thereby  subjected  himself 
to  them.  If  he  had  incurred  penalties  or  assumed  duties  while  under 
these  laws,  he  might  have  expected  they  would  be  enforced  against 
him,  and  should  have  known  that  the  new  political  relation  he  had 
acquired,  if  indeed  he  had  acquired  any,  could  not  operate  as  a  release 
from  these  penalties.  Having  been  once  subject  to  the  municipal 
laws  of  Austria,  and  while  under  her  jurisdiction  violated  these  laws, 
his  withdrawal  from  that  jurisdiction  and  acquiring  a  different 
national  character  would  not  exempt  him  from  their  operation 
whenever  he  again  chose  to  place  himself  under  them.  Every  nation, 
whenever  its  laws  are  violated  by  any  one  owing  obedience  to  them, 
whether  he  be  a  citizen  or  a  stranger,  has  a  right  to  inflict  the  pen- 
alities incurred  upon  the  transgressor,  if  found  within  its  jurisdiction. 
The  case  is  not  altered  by  the  character  of  the  laws,  unless  they  are 
in  derogation  of  the  well-established  international  code.  No  nation 
has  a  right  to  supervise  the  municipal  code  of  another  nation, 
or  claim  that  its  citizens  or  subjects  shall  be  exempted  from  the 
operation  of  such  code,  if  they  have  voluntarily  placed  themselves 
under  it. 

"The  character  of  the  municipal  laws  of  one  country  does  not  fur- 
nish a  just  ground  for  other  states  to  interfere  with  the  execution  of 
these  laws,  even  upon  their  OA^n  citizens,  when  they  have  gone  into 
that  country  and  subjected  themselves  to  its  jurisdiction.  If  this 
country  can  rightfully  claim  no  such  exemption  for  its  native-born 
or  naturalized  citizens,  surely  it  cannot  claim  it  for  those  who  have 
at  most  but  inchoate  rights  of  citizens. 

"The  principle  does  not  at  all  interfere  with  the  right  of  any 
state  to  protect  its  citizens,  or  those  entitled  to  its  protection,  when 
abroad,  from  wrongs  and  injuries, — from  arbitrary  acts  of  oppression 
or  deprivation  of  property,  as  contradistinguished  from  penalties 
and  punishments  incurred  by  the  infraction  of  the  laws  of  the  country 
within  whose  jurisdiction  the  sufferers  have  placed  themselves.  I 
do  not  discover  any  principle  in  virtiiPi  of  which  this  government 
can  claim,  as  a  matter  of  right,  the  release  of  Tousig. 

"  He  has  voluntarily  placed  himself  within  the  jurisdiction  of  the 
laws  of  Austria,  and  is  suffering,  as  appears  by  the  case  as  you  pre- 
sent it,  for  the  acts  he  had  done  in  violation  of  those  laws  while  he 
was  an  Austrian  subject." 


2o0  ^-ATIONALITY.  [PART   I. 


Sectiox  25. — Status  of  American  Indians. 


ELK  V.  WILKIXS. 

SFPEEiiE  Court  of  the  United  States,  1884. 

(112  United  States  Reports,  94.) 

This  \vas  an  action  brought  by  an  Indian  in  the  Circuit  Court  of 
the  United  States  for  the  District  of  Xebraska,  against  the  registrar 
of  one  of  the  wards  of  the  city  of  Omaha,  for  refusing  to  register  him 
as  a  qualified  voter  therein. 

Mr.  Justice  Gray  delivered  the  opmion  of  the  court,  extracts  from 
which  are  as  follows : 

"*  *  *  The  question  then,  is,  whether  an  Indian,  born  a  member  of 
one  of  the  Indian  tribes  within  the  United  States,  is,  merely  by  reason 
of  his  birth  within  the  United  States,  and  of  his  afterwards  voluntarily 
separating  himself  from  his  tribe  and  taking  up  his  residence  among 
white  citizens,  a  citizen  of  the  United  States,  within  the  meaning  of 
the  first  section  of  the  Fourteenth  Amendment  to  the  Constitution. 

"Under  the  Constitution  of  the  United  States,  as  originally  estab- 
lished, '  Indians  not  taxed,'  were  excluded  from  the  persons  according 
to  whose  numbers  representatives  and  direct  taxes  were  apportioned 
among  the  several  states;  and  Congress  had  and  exercised  the  power 
to  regulate  commerce  with  the  Indian  tribes,  and  the  members  there- 
of, whether  within  or  without  the  boundaries  of  one  of  the  States  of 
the  Union.  The  Indian  tribes,  being  within  the  territorial  limits  of 
the  United  States,  were  not,  strictly  speaking,  foreign  states ;  but 
they  were  alien  nations,  distinct  political  communities,  with  whom 
the  United  States  might  and  habitually  did  deal,  as  they  thouglit  tit, 
either  through  treaties  made  by  the  President  and  Senate,  or  through 
acts  of  Congress  in  the  ordinary  forms  of  legislation.  The  members 
of  those  tribes  owed  immediate  allegiance  to  their  several  tribes,  and 
were  not  part  of  the  people  of  the  United  States.  They  were  in  a 
dependent  condition,  a  state  of  pupilage  resembling  that  of  a  ward 
to  his  guardian.  Indians  and  their  property  exempt  from  taxation 
by  treaty  or  statute  of  the  United  Stales,  could  not  be  taxed  by  any 
State.  General  acts  of  Congress  did  not  apply  to  Indians,  unless  so 
expressed  as  to  clearly  manifest  an  intention  to  include  them.     Con- 


CIIAI'.  IV.]  ELK    V.  WILKINS.  231 

stitution,  art.  1,  sees.  2,  8 ;  art.  2,  sec.  2 ;  Cherokee  Mition  v.  Georgia, 
5  Pet.  1 ;  Worcester  \.  Georgia,  6  Pet.,  515;  .  .  .  Croio  Dog's  Case,  10!^ 
U.  S.  556  .   *  *  * 

"The alien  and  dependent  condition  of  the  members  of  the  Indian 
tribes  could  not  be  put  off  at  their  own  will,  without  the  action  or 
assent  of  the  United  States.  They  were  never  deemed  citizens  of 
the  United  States,  except  under  explicit  provisions  of  treaty  or  stat- 
ute to  that  effect,  either  declaring  a  certain  tribe,  or  such  members 
of  it  as  chose  to  remain  behind  on  the  removal  of  the  tribe  westward, 
to  be  citizens,  or  authorizing  individuals  of  particular  tribes  to  be- 
come citizens  on  application  to  a  court  of  the  United  States  for 
naturalization  and  satisfactory  proof  of  fitness  for  civilized  life.  *  *  * 

"  Chief  Justice  Taney,  in  the  passage  cited  for  the  plaintiff  from 
his  opinion  in  Scott  v.  Sandfo7'd,  19  How.,  393,  401,  did  not  affirm  or 
imply  that  either  the  Indian  tribes,  or  individual  members  of  those 
tribes,  had  the  right,  beyond  other  foreigners,  to  become  citizens  of 
their  own  will,  without  being  naturalized  by  the  United  States.  His 
Avords  were  :  'They  '  (the  Indian  tribes)  'may  without  doubt,  like  the 
subjects  of  any  foreign  government,  be  naturalized  l)y  the  authority 
of  Congress,  and  become  citizens  of  a  State,  and  of  the  United  States ; 
and  if  an  individual  should  leave  his  nation  or  tribe,  and  take  up  his 
abode  among  the  white  population,  he  would  be  entitled  to  all  the 
rights  and  privileges  which  would  belong  to  an  emigrant  from  any 
other  foi'eign  people.'  But  an  emigrant  from  any  foreign  state  can- 
not become  a  citizen  of  the  United  States  without  a  formal  renun- 
ciation of  his  old  allegiance,  and  an  acceptance  by  the  United  States 
of  that  renunciation  through  such  form  of  naturalization  as  may  be 
required  by  law. 

"  The  distinction  between  citizenship  by  birth  and  citizenyhip  by 
naturalization  is  clearly  marked  in  the  provisions  of  the  Constitution, 
by  which  'no  person,  except  a  natural  born  citizen  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution,  shall 
be  eligible  to  the  office  of  President ; '  and  'the  Congress  shall  have 
power  to  establish  an  uniform  rule  of  naturalization.'  Constitu- 
tion, art.  2,  sec.  1  ;  art.  1,  sec.  8. 

"  By  the  Thirteenth  Amendment  of  the  Constitution  slavery  was 
prohibited.  The  main  object  of  the  opening  sentence  of  the  Four- 
teenth Amendment  was  to  settle  the  question,  upon  which  there  had 
been  a  difference  of  opinion  througliout  the  country  and  in  this  court, 
as  to  the  citizenship  of  free  negroes,  Scott  v.  Saiulford,  19  How.,  393  ; 
and  to  put  it  beyond  doubt  that  all  persons,  white  or  black,  and 
whether  formerly  slaves  or  not,  born  or  natui-alized  in  the  United 
States,  and  owing  no  allegiance  to  any  alien  power,  should  be  citizen.s 


•232  NATIONALITY.  [PART    I. 

of  the  United  States  and  of  the  State  in  which  they  reside.  Shiugh- 
Ur  House  C'rt^e*',  16  Wall.,  8<3,  73  ;  IStrauder\.  We^t  Vltyinia,  iiOO 
U.  S.,  303,  306. 

"  This  section  contemplates  two  sources  of  citizenship,  and  two 
sources  onl}';  birth  and  naturalization.  The  persons  declared  to  be 
citizens  are  '  all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,'  the  evident  meaning  of  these 
last  words  is  not  merely  subject  in  some  respect  or  degree  to  the 
jurisdiction  of  the  United  States,  but  completely  subject  to  their 
IDolitical  jurisdiction  and  owing  them  direct  and  immediate  allegiance. 
And  the  words  relate  to  the  time  of  birth  in  the  one  case,  as  they 
do  to  the  time  of  naturalization  in  the  other.  Persons  not  thus  sub- 
ject to  the  jurisdiction  of  the  United  States  at  the  time  of  birth 
cannot  become  so  afterwards,  except  by  being  naturalized,  either  indi- 
vidually, as  by  proceedings  under  the  naturalization  acts,  or  collec- 
tively, as  by  force  of  a  treaty  by  which  foreign  territory  is  acquired. 

"  Indians  born  within  the  territorial  limits  of  the  United  States, 
members  of,  and  owing  allegiance  to,  one  of  the  Indian  tribes  (an 
alien,  though  dependent,  power),  although  in  a  geogi-aphieal  sense 
l)orn  in  tlie  United  States,  are  no  more  '  born  in  the  United 
States  and  subject  to  the  jurisdiction  thereof,'  within  the  meaning 
of  the  first  section  of  the  Fourteenth  Amendment,  than  the  children 
of  subjects  of  any  foreign  government  born  within  tlie  domain  of  that 
government,  or  the  children  born  \^ithin  tlie  United  States,  of  am- 
bassadors or  other  public  ministers  of  foreign  nations.  *  *  * 

"Such Indians,  then,  not  being  citizens  by  birth,  can  onh^  become 
citizens  in  the  second  way  mentioned  in  the  Fourteenth  Amendment, 
by  being  '  naturalized  in  the  United  States,'  by  or  under  some 
treaty  or  statute.  *  *  * 

"  The  act  of  July  27, 1868,  ch.  240,  declaring  the  right  of  expatriation 
to  be  a  natural  and  inherent  right  of  all  people,  and  reciting  that 
'in  the  recognition  of  this  principle  this  government  has  freely 
received  emigrants  from  all  nations,  and  invested  them  with  the  rights 
of  citizenship,'  while  it  affiiins  the  right  of  every  man  to  expatriate 
himself  from  one  country,  contains  nothing  to  enal)le  him  to  become 
a  citizen  of  another,  witliotit  being  naturalized  under  its  authority. 
15  Stat.,  223 ;  Rev.  Stat.,  §  1099. 

"The  provision  of  the  act  of  Congress  of  ]\Iarch  3,  1871,  ch.  12(i, 
that  '  hereafter  no  Indian  nation  or  tribe  within  the  territory  of  the 
United  States  shall  be  acknowledged  or  recognized  as  an  independent 
nation,  tribe  or  power  with  Mhoin  the  Ignited  States  may  contract 
by  treaty,'  is  coupled  with  a  provision  tliat  the  obligation  of  any 
treaty  already  lawfully  made  is  not  to  be  thereby  invalidated  or  im- 


OHAP.  IV.]  UNITED    STATES    V.  KACAMA.  233 

paired,  and  its  utmost  possible  effect  is  to  require  the  Indian  triljes 
to  be  dealt  Avith  for  the  future  through  the  legislative  and  not  through 
the  treaty-making  power.     16  Stat.,  5(56;  Kev.  Stat.,  §  2079.  *  *  * 

"  'llie  [)laintift',  not  being  a  citizen  of  the  United  States  under  the 
Fourteenth  Amendment  of  the  Constitution,  has  been  depi'ived  of  no 
right  secured  by  the  Fifteenth  Amendment,  and  cannot  maintain  this 
action. 

"Judgment  attiimed." 


UNITED  STATES  v.  KAGAMA. 

Supreme  Court  of  the  United  States,  1886. 
(US  United  States  Reporta,  375.) 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

"  The  case  is  brought  here  by  certificate  of  division  of  opinion 
between  the  Circuit  Judge  and  the  District  Judge  holding  the  Cir- 
cuit Court  of  the  United  States  for  District  of  California. 

"The  questions  certified  arise  on  a  denuirrer  to  an  indictment 
against  two  Indians  for  murder  committed  on  the  Indian  reservation 
of  Iloopa  Valley,  in  the  State  of  California,  the  pei'sun  nnirdered 
being  also  an  Indian  of  said  reservation.  Though  there  are  six  ques- 
tiorjs  certified  as  the  subject  of  difference,  the  point  of  tliem  all  is 
well  set  out  in  the  third  and  sixth,  which  are  as  follows  : 

"Whether  the  provisions  of  said  section  9  (of  the  act  of  Congress 
of  March  3, 1885),  making  it  a  crime  for  one  Indian  to  commit  murder 
upon  another  Indian,  upon  an  Indian  reservation  situated  wholly 
within  the  liinits  of  a  State  of  the  Union,  and  making  sucli  Indian 
so  committing  the  crime  of  murder  within  and  upon  such  Indian 
reservation  'subject  to  the  same  laws'  and  subject  to  be  '  tried  in 
the  same  courts,  and  in  the  same  manner,  and  subject  to  the  same 
penalties  as  are  all  other  persons'  committing  the  crime  of  mui'der 
'  within  the  exclusive  jurisdiction  of  the  United  States,'  is  a  consti- 
tutional and  valid  law  of  the  United  States?' 

"  '6.  Wliether  the  courts  of  the  United  States  have  jurisdiction 
or  authority  to  try  and  punish  an  Indian  belonging  to  an  Indian 
tribe  for  committing  the  crime  of  murder  upon  another  Indian  be- 
longing to  the  same  Indian  tribe,  both  sustaining  the  usual  tribal 
relations,  said  crime  having  been  committed  upon  an  Indian  reserva- 
tion made  and  set  apart  for  the  use  of  the  Indian  tribe  to  which  said 
Indians  both  belone:?' 


234  NATIONALITY.  [PART  I. 

"  The  indictment  sets  out  in  two  counts  that  Kagama,  alias  Pactah 
Billy,  an  Indian,  murdered  Tyouse,  alias  Ike,  another  Indian,  at  Hum- 
boldt county,  in  the  State  of  California,  within  the  limits  of  the 
Hoopa  Valley  Reservation,  and  it  charges  Mahawaha,  alias  Ben,  also 
an  Indian,  with  aiding  and  abettijig  in  the  murder, 

"  The  law  referred  to  m  the  certificate  is  the  last  section  of  the 
Indian  appropriation  act  of  that  year,  and  is  as  follows : 

"  '  9.  That  immediately  upon  and  after  the  date  of  the  passage  of 
this  act  all  Indians  committing  against  the  person  or  property  of 
another  Indian  or  other  person  any  of  the  following  crimes,  namely, 
mnider,  manslaughter,  rape,  assault  with  intent  to  kill,  arson,  burg- 
lary and  larceny,  within  any  territory  of  the  United  States,  and 
either  within  or  without  the  Indian  reservation,  shall  be  subject 
therefor  to  the  laws  of  said  Territory  relating  to  said  crimes,  and 
shall  be  tried  therefor  in  the  same  coui'ts  and  in  the  same  manner, 
and  shall  be  subject  to  the  same  penalties,  as  are  all  other  persons 
charged  with  the  commission  of  the  said  crimes,  respectively ;  and 
the  said  courts  are  hereby  given  jurisdiction  in  all  such  cases;  and 
all  such  Indians  committing  any  of  the  above  crimes  against  the 
person  or  property  of  another  Indian  or  other  person,  within  the 
boundaries  of  any  State  of  tlie  United  States,  and  within  the  limits 
of  any  Indian  reservation,  shall  be  subject  to  the  same  lav/s,  tried  in 
the  same  courts  and  in  the  same  manner,  and  suV)ject  to  the  same 
penalties,  as  are  all  other  persons  committing  any  of  the  above  crimes 
within  the  exclusive  jurisdiction  of  the  United  States.,  23  Stat. 
Ch.,  341,  36-2,  §  9,  385. 

"The  above  enactment  is  clearly  separable  into  two  distinct  defini- 
tions of  the  conditions  under  whic-li  Indians  may  be  punished  for  the 
same  crimes  as  defined  by  the  cftmmon  law.  The  first  of  these  is 
where  the  offence  is  connnitted  within  the  limits  of  a  territorial  gov- 
ernment, whether  on  or  off  an  Indian  reservation.  In  this  class  of 
cases  the  Indian  charged  with  the  crime  shall  be  judged  by  the  laws 
of  the  Territory  on  that  subject,  and  tried  by  its  courts.  This  propo- 
sition itself  is  new  in  legislation  of  Congress,  which  has  heretofore 
only  undertaken  to  punish  an  Indian  who  sustains  the  usual  relation 
to  his  tribe,  and  who  commits  the  offence  in  the  Indian  countrj^  or 
on  an  Indian  reservation,  in  exceptional  cases;  as  where  the  offence 
was  against  the  person  or  property  of  a  white  man,  or  was  some  vio- 
lation of  the  trade  and  intercotirse  regulations  imi)Osed  by  Congress 
on  the  Indian  tribes.  It  is  new,  because  it  now  pn)])oses  to  punish 
these  offences  wlien  they  are  committed  by  one  Indian  on  the  person 
or  property  of  another. 

"The  second  is  where  the  offence  is  committed  bv  one  Indian 


CHAr.  IV.]  UNITED    STATES    V.  KAGAMA.  235 

against  the  person  or  property  of  another,  within  the  limits  of  a  State 
of  the  Union,  but  on  an  Indian  reservation.  In  this  case,  of  wliich 
the  State  and  its  tribunals  would  have  jurisdiction  if  the  offence  was 
committed  hy  a  white  man  outside  an  Indian  reservation,  tlie  courts 
of  tlie  United  States  are  to  exercise  jurisdiction  as  if  the  offence  had 
been  committed  at  some  place  within  the  exclusive  jurisdiction  of  the 
United  States.  The  first  clause  subjects  all  Indians  guilty  of  these 
crimes,  committed  wdthin  the  limits  of  a  Territory,  to  the  laws  of 
that  Territory,  and  to  its  courts  for  trial.  The  second,  whicli  applies 
solely  to  offences  by  Indians  which  are  committed  within  the  limits 
of  a  State  and  the  limits  of  a  reservation,  subjects  the  offenders  to 
the  laws  of  the  United  States  passed  for  the  government  of  places 
under  the  exclusive  jurisdiction  of  those  laws,  and  to  trial  by  the 
courts  of  the  United  States.  This  is  a  still  further  advance,  as  assert- 
ing this  jurisdiction  over  the  Indians  within  the  limits  of  the  States 
of  the  Union. 

"Although  the  offence  charged  in  this  indictment  was  connnitted 
within  a  State  and  not  within  a  Teriitoi-^-,  the  considerations  A\hieli 
are  necessary  to  a  solution  of  the  problem  in  regard  to  the  one  nmst 
in  a  large  degree  affect  the  other. 

''  The  Constitution  of  the  United  States  is  almost  silent  in  regard 
to  the  relations  of  the  government  which  was  established  by  it  to  the 
numerous  tril)es  of  Indians  within  its  borders. 

"  In  declaring  the  basis  on  which  representation  in  the  lower  l)ranch 
of  the  Congress  and  direct  taxation  should  be  apportioned,  it  was  fixed 
that  it  should  be  according  to  numbers,  excluding  Indians  not  taxed, 
which,  of  course,  excluded  nearly  all  of  that  race,  but  which  meant 
that  if  there  were  such  Avithin  a  State  as  were  taxed  to  support  the 
g(ivernment,  they  should  be  counted  for  representation,  and  in  the 
computation  for  direct  taxes  levied  by  the  United  States.  This 
expression,  excluding  Indians  not  taxed,  is  found  in  the  XI  Vth  amend- 
ment, where  it  deals  with  the  same  su'oject  under  the  new  conditions 
produced  by  the  emancipation  of  the  slaves.  Neither  of  these  shed 
much  light  on  the  power  of  Congress  over  the  Indians  in  their  exist- 
ence as  tribes,  distinct  from  tlie  ordinary  citizens  of  a  State  or  Ter- 
ritory. 

"  The  mention  of  Indians  in  the  constitution  which  has  received 
most  attention  is  that  found  in  the  clause  which  gives  Congress 
'  power  to  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  with  the  Indian  tribes.' 

"  This  clause  is  relied  on  in  the  argument  in  the  present  case,  the 
proposition  being  that  the  statute  under  consideration  is  a  regulation 
of  commerce  with  the  Indian  tribes.     But  we  think  it  Avould  be  a 


238  NATIONALITY.  [PART  I. 

very  strained  construction  of  this  clause,  that  a  system  of  criminal 
laws  for  Indians  living  peaceably  in  their  reservations,  which  left 
out  the  entire  code  of  trade  and  intercourse  laws  justly  enacted 
under  that  provision,  and  established  punishments  for  the  common- 
law  crimes  of  murder,  manslaughter,  arson,  burglary,  larceny,  and 
the  like,  without  any  reference  to  their  relation  to  any  kind  of  com- 
merce, was  authorized  by  the  grant  of  power  to  regulate  commerce 
with  the  Indian  tribes.  While  we  are  not  able  to  see,  in  eitlier  of 
these  clauses  of  the  Constitution  and  its  amendments,  any  delegation 
of  power  to  enact  a  code  of  ci'iminal  law  for  the  punishment  of  the 
worst  class  of  crimes  known  to  civilized  life  when  committed  by 
Indians,  there  is  a  suggestion  in  the  manner  in  which  the  Indian 
tribes  are  introduced  into  that  clause,  which  may  have  a  bearing  on 
the  subject  before  us.  The  commerce  with  foreign  nations  is  dis- 
tinctly stated  as  submitted  to  the  control  of  Congress.  "Were  the 
Indian  tribes  foreign  nations  ?  If  so,  they  came  within  the  first  of 
the  three  classes  of  commerce  mentioned,  and  did  not  need  to  be 
repeated  as  Indian  tribes.  Were  they  nations,  in  the  minds  of  the 
framers  of  the  Constitution  ?  If  so,  the  natural  phrase  would  have 
be^n  '  foreign  nations  and  Indian  nations,'  or,  in  the  terseness  of 
language  uniformly  itsed  by  the  framers  of  the  instrument,  it  would 
naturally  have  been  '  foreign  and  Indian  nations.'  And  so  in  the 
case  of  Tlie  Cheronee  JSTation  v.  The  State  of  Geor(ji((^  5  Pet.,  1,  20, 
brought  in  the  Supreme  Court  of  the  United  States,  under  the 
declaration  that  the  judicial  jDower  extends  to  suits  between  a  State 
and  foreign  states,  and  giving  to  the  Supreme  Court  original  juris- 
diction where  a  State  is  a  party,  it  was  conceded  that  Georgia  as  a 
State  came  within  the  clause,  but  held  that  the  Cherokees  were  not 
a  State  or  nation  within  the  meaning  of  the  Constitution,  so  as  to  be 
able  to  maintain  the  suit. 

"  But  these  Indians  are  within  the  geographical  limits  of  the  United 
States.  The  soil  and  the  people  within  these  limits  are  under  the 
political  control  of  the  (Government  of  the  United  States,  or  of  the 
States  of  the  Union.  There  exist  within  tlie  broad  domain  of 
sovereignty  but  these  two.  There  may  be  cities,  counties,  and  other 
organized  bodies  with  limited  legislative  functions,  but  thej'  are  all 
derived  from,  or  exist  in,  subordination  to  one  or  the  other  of  these. 
The  territorial  governments  owe  all  their  powers  to  the  statutes  of 
the  United  States  conferring  on  them  the  powers  which  they  exercise, 
and  wliich  are  liable  to  be  withdrawn,  modified,  or  repealed  at  any 
time  by  Congress.  What  authority  the  State  governments  may  have 
to  enact  criminal  laws  for  the  Indians  will  be  presently  considered. 
But  this  power  of  Congress  to  organize  territorial  governments,  and 


CHAP.  lY.]  UNITED    STATES    V.  KAGAMA.  237 

make  laws  for  their  inhabitants,  arises  not  so  much  from  the  clause 
in  tl]e  Constitution  in  regard  to  disposing  of  and  making  rules  and 
i-egulations  concerning  the  Territory  and  other  property  of  the 
United  States,  as  from  the  ownership  of  the  country  in  which  the 
Territories  are,  and  the  right  of  exclusive  sovereignty  wliich  nuist 
exist  in  the  National  Government,  and  can  be  found  nowhere  else. 
Marplvi  V.  liaiiisey,  114  U.  S.,  15,  44. 

"In  the  case  oi  American  Ins.  Co.  v.  Canter,  1  Pet.,  511,  54:^,  in 
wliicli  the  condition  of  the  people  of  Florida,  then  under  a  territorial 
government,  was  under  consideration,  Marshall,  Chief  Justice,  said  : 
'  Perhaps  the  power  of  governing  a  Territory  belonging  to  the  United 
States,  which  has  not,  by  becoming  a  State,  acquired  the  means  of 
self-government,  may  result  necessarily  from  the  fact  that  it  is  not 
within  the  jurisdiction  of  any  particular  State,  and  is  within  the 
powei'  and  jurisdiction  of  the  United  States.  The  right  to  govern 
may  be  the  inevitable  consequence  of  the  right  to  acquire  Territory. 
Whichever  may  be  the  source  whence  the  power  is  derived,  the 
possession  of  it  is  unquestioned.' 

"  In  the  case  of  the  United  States  v.  Rogers,  4  How.,  567,  572,  where 
a  ^^  liite  man  pleaded  in  abatement  to  an  indictment  for  murder 
committed  in  the  country  of  the  Cherokee  Indians,  that  he  had  been 
ado[)tedby  and  become  a  member  of  the  Cherokee  tribe.  Chief  Justice 
Taxey  said :  '  The  country  in  which  the  crime  is  charged  to  liave 
been  committed  is  a  part  of  the  territory  of  the  United  States,  and 
not  Vv'itliin  the  limits  of  any  particular  State.  It  is  true  it  is  occupied 
by  the  Cherokee  Indians.  But  it  has  been  assigned  to  them  by  the 
United  States  as  a  place  of  domicil  for  the  tribe  and  they  hold  with 
the  assent  of  the  United  States,  and  under  their  authority,'  After 
referring  to  the  policy  of  the  European  nations  and  the  United  States 
in  asserting  domhiion  over  all  the  country  discovered  by  them,  and 
the  justice  of  this  course,  he  adds  :  '  But  had  it  been  otherwise,  and 
were  the  right  and  the  propriety  of  exercising  this  power  now  open 
to  question,  yet  it  is  a  question  for  the  law-making  and  political  de- 
partments of  the  government,  and  not  for  the  judicial.  It  is  our 
duty  to  expound  and  execute  the  law  as  we  find  it,  and  we  think  it 
too  firmly  and  clearly  established  to  admit  of  dispute,  that  the  Indian 
tribes,  residing  within  the  territorial  limits  of  the  United  States,  are 
subject  to  their  authority,  and  when  the  country  occupied  by  one  of 
them  is  not  within  the  limits  of  one  of  the  States,  Congress  may  by 
law  punish  any  offence  committed  there,  no  matter  whether  the 
offender  be  a  white  man  or  an  Indian.' 

"  The  Indian  reservation  in  the  case  before  us  is  land  bought  by 
the  United  States  from  Mexico  by  the  treaty  of  Guadaloupe  Hidalgo, 


2SS  NATIONALITY.  [l'A[:T  I. 

and  the  whole  of  California,  with  the  allegiance  of  its  inhabitants, 
many  of  whom  were  Indians,  was  transferred  by  that  treaty  to  the 
United  States. 

"  The  relation  of  the  Indian  tribes  living  within  the  borders  of 
the  United  States,  both  before  and  since  the  Kevolution,  to  the 
people  of  the  United  States  has  always  been  an  anomalous  one  and 
of  a  complex  character. 

"  Following  the  policy  of  the  European  governments  in  the  dis- 
covery of  America  towards  the  Indians  who  were  found  here,  the 
colonies  before  the  Revolution  and  the  States  and  the  United  States 
since,  have  recognized  in  the  Indians  a  possessory  right  to  the  soil 
over  which  they  roamed  and  hunted  and  established  occasional  vil- 
lages. But  they  asserted  an  ultimate  title  in  the  land  itself,  by 
which  the  Indian  tribes  were  forbidden  to  sell  or  transfer  it  to  other 
nations  or  people  without  the  consent  of  this  paramount  authority. 
When  a  tribe  wished  to  dispose  of  its  land,  or  any  part  of  it,  or  the 
State  or  the  United  States  wished  to  purchase  it,  a  treaty  with  the  tribe 
was  the  only  mode  in  which  this  could  be  done.  The  United  States 
recognized  no  right  in  private  persons,  or  in  other  nations,  to  make 
such  a  purchase  by  treaty  or  otherwise.  With  the  Indians  them- 
selves these  relations  are  equally  difficult  to  define.  They  were, 
and  always  have  been,  regarded  as  having  a  semi-independent  posi- 
tion when  they  preserved  their  tribal  relations;  not  as  States,  not 
as  nations,  not  as  possessed  of  the  full  attributes  of  sovereignty,  but 
as  a  separate  people  with  the  power  of  regulating  their  internal  and 
social  relations,  and  thus  far  not  brought  under  the  laws  of  the 
Union  or  of  the  State  within  whose  limits  they  resided. 

"  Perhaps  the  best  statement  of  their  position  is  found  in  the  two 
opinions  of  this  court  by  Chief  Justice  JMarshall  in  the  case  of  the 
(J lierokee  Nations.  Georf/ia,  5  Pet.,  1,  and  in  the  case  of  Worcester  \. 
^Hate  of  Georgia,  6  Pet.,  515,  53G.  These  opinions  are  exhaustive; 
and  in  the  separate  opinion  of  Mr.  Justice  Baldwin,  in  the  former,  is 
a  very  valuable  resume  of  the  treaties  and  statutes  concerning  the 
Indian  tribes  previous  to  and  during  the  confederation. 

"  In  the  first  of  the  above  cases  it  was  held  that  these  tribes  were 
neither  States  nor  nations,  liad  only  some  of  the  attributes  of  sov- 
ereignty, and  could  not  be  so  far  recognized  in  that  capacity  as  to 
sustain  a  suit  in  the  Supreme  Court  of  the  United  States.  In  the 
second  case  it  was  said  that  they  were  not  subject  to  the  jurisdiction 
asserted  over  them  by  the  State  of  Georgia,  which,  because  they 
were  within  its  limits  where  they  had  been  for  ages,  had  attempted 
to  extend  her  law^s  and  the  jurisdiction  of  her  courts  over  them. 

"  In  the  opinions  in  these  cases  they  are  spoken  of  as  '  wards  of 


CHAP.  IV.]  UNITED    STATES    V.  KAGAMA.  239 

the  nation,'  '  pupils,'  as  local  dependent  communities.  In  tliis  spirit 
the  United  States  has  conducted  its  relations  to  them  from  its 
organization  to  this  time.  But,  after  an  experience  of  a  hundred 
years  of  the  treaty-making  system  of  government,  Congress  has 
determined  upon  a  new  departure — to  govern  them  l)y  acts  of  Con- 
gress. This  is  seen  in  the  act  of  March  8,  1871,  embodied  in  §  2079 
of  the  Revised  Statutes  : 

"'Xo  Indian  nation  or  tribe,  within  the  territory  of  the  United 
States  shall  be  acknowledged  or  recognized  as  an  independent  na- 
tion, tribe,  or  power,  with  whom  the  United  States  may  contract 
by  treaty;  but  no  obligation  of  any  treaty  lawfully  made  and 
ratified  with  any  such  Indian  nation  or  tribe  prior  to  ]\Iarch 
third,  eighteen  hundred  and  seventy-one,  shall  be  hereby  invalidated 
or  impaired.' 

"  The  case  of  Croio  -Dor/,  109  U.  S.,  55G,  in  which  an  agreement 
with  the  Sioux  Indians,  ratified  by  an  act  of  Congress,  was  supposed 
to  extend  over  them  the  laws  of  the  United  States  and  the  jurisdic- 
tion of  its  courts,  covering  murder  and  other  grave  crimes,  shows 
the  purpose  of  Congress  in  this  new  departure.  The  decision  in  that 
case  admits  that  if  the  intention  of  Congress  had  been  to  punish,  by 
the  United  States  courts,  the  murder  of  one  Indian  by  another,  the 
law  would  have  been  valid.  But  the  court  could  not  see,  in  the 
agreement  with  the  Indians  sanctioned  by  Congress,  a  purpose  to 
repeal  §  2146  of  the  Revised  Statutes,  which  expressly  excludes  from 
that  jurisdiction  the  case  of  a  crime  committed  by  one  Indian 
against  another  in  the  Indian  country.  The  passage  of  the  act  now 
under  consideration  was  designed  to  remove  that  objection,  and  to 
go  further  by  including  such  crimes  on  reservations  lying  withhi 
a  State. 

"  Is  this  latter  fact  a  fatal  objection  to  the  laAv?  The  statute  itself 
contains  no  express  limitation  upon  the  powers  of  a  State  or  the 
jurisdiction  of  its  courts.  If  there  be  any  limitation  in  either  of 
these,  it  grows  out  of  the  implication  arising  from  the  fact  that 
Congress  has  defined  a  crime  committed  within  the  State,  and 
made  it  punishable  in  the  courts  of  the  United  States.  But  Con- 
gress has  done  this,  and  can  do  it,  with  regard  to  all  offences  relat- 
ing to  matters  to  which  the  Federal  authority  extends.  Does  tliat 
authority  extend  to  this  case  ? 

"  It  will  be  seen  at  once  that  the  nature  of  the  offence  (murdei-)  is 
one  which  in  almost  all  cases  of  its  commission  is  punishable  by  the 
laws  of  the  States,  and  within  the  jurisdiction  of  their  courts.  The 
distinction  is  claimed  to  be  that  the  offence  under  the  statute  is 
committed  by  an  Indian,  that  it  is  committed  on  a  reservation  set 


240  NATIONALITY.  [PART  I. 

apart  within  the  State  for  residence  of  the  tribe  of  Indians  b}'  the 
United  States,  and  the  fair  inference  is  that  tlie  offending  Indian 
shall  belong-  to  that  or  some  other  tribe.  It  does  not  interfere  with 
the  process  of  the  State  Courts  within  the  reservation,  nor  with  the 
operation  of  State  laws  upon  white  people  found  there.  Its  effect 
is  confined  to  the  acts  of  an  Indian  of  some  tribe,  of  a  criminal  char- 
acter, committed  within  the  limits  of  the  reservation. 

"It  seems  to  us  that  this  is  within  the  competency  of  Congress. 
These  Indian  tribes  are  the  wards  of  the  nation.  The}^  are  com- 
mmiities  dependent  on  the  United  States.  Dependent  largely  for 
their  daily  food.  Dependent  for  their  political  rights.  They  owe 
no  allegiance  to  the  States,  and  receive  from  them  no  protection. 
Because  of  the  local  ill-feeling,  the  people  of  the  States  where  they 
are  found  are  often  their  deadliest  enemies.  From  their  very  weak- 
ness and  helplessness,  so  largely  due  to  the  course  of  dealing  of  the 
Federal  Government  with  them  and  the  treaties  in  which  it  has  been 
promised,  there  arises  the  duty  of  protection,  and  with  it  the  power. 
This  has  always  been  recognized  by  the  Executive  and  by  Congress, 
and  by  this  Court  whenever  the  question  has  arisen. 

'•  In  the  case  of  Wojxester  v.  The  State  of  Georgia^  above  cited, 
it  Avas  held  that,  though  the  Indians  had  by  treaty  sold  their  land 
within  that  State,  and  agreed  to  remove  away,  which  they  had 
failed  to  do,  the  State  could  not,  while  they  remained  on  those 
lands,  extend  its  laws,  criminal  and  civil,  over  the  tribes  ;  that  the 
dut}^  and  power  to  compel  their  removal  was  in  the  United  States, 
and  the  tribe  was  under  their  protection,  and  could  not  be  subjected 
to  the  laws  of  the  State  and  the  process  of  its  courts. 

"  The  same  thing  was  decided  in  the  case  of  Fellows  v.  BlacJcsmith 
and  Others^  19  How.,  366.  In  this  case,  also,  the  Indians  had  sold 
their  lands  under  supervision  of  the  States  of  Massachusetts  and 
of  Xew  York,  and  had  agreed  to  remove  within  a  given  time.  When 
the  time  came  a  suit  to  recover  some  of  the  land  was  brought  in 
the  Supreme  Court  of  Xew  York,  Avhich  gave  judgment  for  the 
plaintiff.  But  this  court  held,  on  writ  of  error,  that  the  State  could 
not  enforce  this  removal,  but  the  duty  and  the  power  to  do  so  was  in 
the  United  States.  See  also  the  case  of  the  Jvansas  Indians,  5 
"Wall,  737;  Xcio  York  Indians,  5  ^Vall.,  761. 

"  The  power  of  the  General  Government  over  these  remnants  of  a 
race  once  powerful,  now  weak  and  diminished  in  numbers,  is  nec- 
essary to  their  protection,  as  well  as  to  the  safety  of  those  among 
whom  the}'  dwell.  It  must  exist  in  that  government,  because  it 
never  has  existed  anywhere  else,  because  the  theater  of  its  exercise 
is  within  the  geographical  limits  of  the  United  States,  because  it  has 


CHAP.  lY.]  UNITED   STATES   V.  KAGAMA.  241 

never  been  denied,  and  because  it  alone  can  enforce  its  laws  on  all 
the  tribes. 

«  We  answer  the  questions  propounded  to  us,  that  the  0th  section 
of  the  act  of  March,  1885,  is  a  valid  law  in  both  its  branches,  and 
that  the  Circuit  Court  of  the  United  States  for  the  District  of  Cali- 
fornia has  jurisdiction  of  the  offence  charged  in  the  indictment  in 
this  case." 
16 


PART  II. 

INTERNATIONAL  RELATIONS  AS  MODIFIED  BY  WAR. 


CHAPTER  I. 

MEASURES  SHORT  OF  WAPu 


§  26, — Repeisals. 


SILESIAN  LOAN,  1752. 

(Martens:  Causes  CeVebres,  II.,  97.) 

The  controversy  in  this  case  was  as  regards  tlie  riglit  of  a  State  to  confiscate,  for 
any  reason,  its  public  debt,  held  by  foreign  creditors. 

In  1735  the  Emperor  Charles  VI.  borrowed  of  several  London 
merchants  the  sum  of  1,000,000  ecus  (3,000,000  francs),  and  as  secur- 
ity for  repayment,  gave  them  a  mortgage  on  the  revenues  of  the 
Province  of  Silesia.  After  the  death  of  the  Emperor  (1740)  Frederick 
II.  of  Prussia  seized  Silesia,  which  Maria  Theresa  was  consti-ained  to 
formally  cede  to  him  by  the  treaties  of  Breslau  and  Berlin,  174-J. 
Frederick  agreed,  however,  to  assume  the  debt  of  the  province  and  to 
pay  the  English  creditors. 

In  1744  war  broke  out  between  England  on  the  one  side  and 
France  and  Spain  on  the  other.  And  during  the  next  four  years  the 
English  seized  eighteen  Prussian  vessels  and  thirty-three  other 
neutral  vessels,  freighted  in  whole  or  in  part  by  Prussian  subjects, 
and  laden  with  merchandise  on  account  of  French  subjects.  These 
ships  and  their  cargoes  were  seized  for  carrying  contraband  of  war 
or  goods  belonging  to  the  enemy. 

The  government  of  England  having  refused  to  listen  to  tin-  demand 

of  the  Prussian   govei'nment  fur  an   indemnity  to  the    claimants, 

243 


244  MEA^^UREO    SHORT    OF    WAR.  [PART  II. 

Frederick  TI.  fippointed  a  commission  in  1751  to  examine  these  claims 
and  compensate  tlie  claimants  out  of  the  Silesian  loan,  the  paj-- 
ment  of  which  had  been  withheld  for  this  purpose.  The  next  year 
the  commission  gave  judgment,  transferring  the  English  mortgage 
on  the  Silesian  revenues  to  the  Prussian  claimants  as  indemnity  for 
the  seizure  of  their  propert3^ 

The  contention  of  the  Prussian  government  was  that  England  had 
acted  illegally  in  capturing  the  property  of  her  enemies  on  neutnil 
A'essels, — that  the  rule,  supported  by  the  practice  of  most  of  th;- 
nations  of  Europe,  was  "  free  ships,  free  goods  ;  "  and  further  that 
the  treaties  of  England  with  the  neutral  powers,  confirmed  by  the 
declarations  of  the  English  ministry  to  diplomatic  agents  of  Prussia, 
had  exempted  such  goods  from  capture.  According  to  the  law  of 
nature,  say  the  Prussian  commissioners,  the  vessel  of  a  neutral  is 
his  property  wherever  it  may  be  found  (i.  e.  on  the  high  seas),  and  a 
belligerent  has  no  more  right  to  enter  it  to  seize  the  goods  of  his 
enemy,  than  he  has  to  enter  a  neutral  port  and  seize  the  vessels  of 
his  enemy  therein  anchored. 

As  to  contraband  of  war,  the  general  rule  of  international  law 
limited  it  to  munitions  of  war,  the  only  exception  being  things  of 
ancipitis  nsus  destined  to  a  beseiged  or  blockaded  port.  Ic  was 
shown  that  England  herself  had  made  several  treaties  in  which  jiro- 
visions  and  articles  of  naval  construction  were  expressly  excluded 
from  the  list  of  contraband. 

Finalh',  it  was  asserted,  that  the  English  admiralty  court  had  no 
right  of  jurisdiction  over  Prussian  vessels  or  cargoes  seized  in  jjlaces 
not  within  English  territory ;  and  that  these  unjust  confiscations 
furnished  a  just  cause  for  reprisals  on  the  part  of  Prussia. 

The  matter  was  referred  by  the  English  government  to  a  commis- 
sion, composed  of  Sir  R.  Lee,  judge  of  the  Supreme  Court,  Dr.  Paul, 
the  King's  Advocate-General  in  the  civil  courts.  Sir  Dudley  Pyder, 
the  Attorney- General,  and  ^Ir.  William  Murray,  Solicitor-General 
(celebrated  later  as  Lord  ]\Iansfield).  The  report  of  this  commission 
is  mentioned  by  Montesquieu  as  rcponse  sans  rejjlique.  The  follow- 
ing propositions  were  laid  down  : — 

(1)  "When  two  powers  are  at  war,  each  has  the  right  to  seize  as 
prize  of  war,  the  ships  and  merchandise  of  the  other,  but  the  prop- 
erty of  neutrals  should  not  be  captured  so  long  as  they  preserved 
their  neutrality.  It  follows,  therefore,  (2)  That  the  goods  of  an 
enemy  on  board  a  neutral  vessel  may  be  seized.  (-8)  That  neutral 
goods,  not  contraband,  on  board  tlie  vessel  of  an  enemy,  should  be 
leleased.  (4)  That  contraband  goods,  although  belonging  to  a 
neutral,  may  be  seized  as  prize  of  war.     (5)  Before  appropriation  of 


CHAP.  I.]  SILESIAN   LOAN.  245 

captured  goods,  there  must  be  condemnation  by  a  court  of  admiralty, 
judg'ing  according  to  the  law  of  nations  and  treaties.  (0)  The  only 
competent  court  for  that  purpose  is  the  court  of  the  captor.  (7)  All 
proofs,  in  the  first  instance,  should  come  from  the  vessel  seized,  such 
as  the  ship's  papers  and  the  depositions  of  the  master  and  principal 
officers  of  the  ship,  (8)  Every  vessel  must  be  furnished  with  the 
customary  papers.  (9)  If  a  seizure  is  made  without  sufficient 
grounds,  the  captor  is  to  be  coiidennied  in  damages  and  expenses. 
(lU)  Finally,  the  law  of  nations  permits  reprisals  in  only  two  cases; 
First,  in  the  case  of  a  violent  wrong  directed  and  supijorted  by  the 
sovereign,  or  second,  of  an  absolute  denial  of  justice  on  the  part  of 
all  the  tribunals,  and  the  sovereign  himself,  in  a  matter  that  admits 
of  no  doubt. 

The  report  then  takes  up  the  cases  of  the  captured  vessels  in 
detail,  and  shows  that  they  were  judged  with  the  utmost  impartiality. 
It  would  seem  that  all  the  Prussian  vessels  were  restored,  and  all  the 
cargoes  in  both  classes  of  vessels  save  fifteen  were  likewise  restored. 
The  Prussian  arguments  are  then  ansAvered  seriatim,  and  shown  to 
be  without  foundation  in  law  or  custom.  Perhaps  the  weakest  part 
of  the  report  is  the  answer  to  the  Prussian  contention  that  contra- 
band was  limited  to  munitions  of  war.  The  question,  says  Wheaton, 
Tv'as  at  that  time  in  litigation  between  England  and  the  states  of  the 
north  who  had  an  interest  in  the  free  exportation  of  the  products  of 
their  soil,  as  naval  stores  and  provisions.  The  commissioners  only 
said  that  Prussia  could  not  claim  the  advantage  of  modifications  of 
international  law  which  had  been  the  result  of  mutual  concessions 
between  England  and  certain  neutral  states. 

As  to  the  Silesian  loan,  the  King  of  Prussia  had  pledged  his  royal 
word  to  pay  the  debt  due  to  private  individuals.  This  debt  --A-as 
negotiable,  and  a  large  part  of  it  may  have  been  transferred  to  sub- 
jects of  other  states.  It  would  be  difficult  to  find  a  case  where  a 
sovereign  had  ever  seized  by  way  of  reprisal  a  debt  which  he  owed 
to  private  individuals.  When  individuals  lend  money  to  a  sovereign, 
they  have  to  trust  to  his  honor ;  for  a  sovereign  may  not,  like  other 
men,  be  sued,  and  forced  to  pay  by  the  interposition  of  courts  of  law. 
England,  France,  and  Spain,  it  was  asserted,  had  adhered  religiously 
to  the  principle  of  the  inviolability  of  the  public  faith. 

The  dispute  was  finally  settled  l>y  a  clause  of  the  treaty  of  West- 
minster, January  16,  1756,  by  which  Frederick  stipulated  to  pay  the 
English  creditors,  and  the  English  government  agreed  to  pay  20,000 
pounds  sterling  to  satisfy  the  Prussian  claimant.  (Wheaton  :  Ilis- 
toire  du  Droit  des  Gens,  I.,  260.) 

The  importance  of  this  case  rests,  more  upon  the  able  exposition  of 


246  MEASURES  SHORT  OF  ^'AR.         [PART  II. 

the  la\v  of  maritime  capture  by  tlie  English  commissioners,  than 
upon  the  question  of  reprisals.  The  report  of  this  commission  was 
generall}'  accepted  as  a  correct  statement  of  the  law  of  prize  as  then 
existing ;  and  indeed,  it  so  continued  with  little  change  till  1856.  On 
the  other  hand,  the  Prussian  contention  was  an  attempt  to  establish 
the  principle  of  "  free  ships,"  free  goods,  wliich  was  not  realized  till  a 
hundred  years  later. 

As  to  the  question  of  reprisal,  England  virtually  yielded  the  point 
ni  controversy  in  consenting  to  indemnify  the  Prussian  claimants. 
Perhaps  political  reasons  may  have  influenced  the  final  action.  The 
alliance  between  France  and  Austria  at  this  time  forced  England 
and  Prussia  into  a  counter-alliance,  and  their  minor  differences  were 
smoothed  over  rather  hastily. 


CASE  OF  DOX  PACIFICO,  1850. 

{Brit,  and  For.  Stat.  Pap.,  vol.  39,  pji.  333-932.) 

Is  a  state  responsible  for  the  lawless  actions  of  its  citizens,  to  foreign  statei; 
whose  citizens  suffer  injury  ?  England  so  held  ni  this  case,  and  proceeded  to  re- 
prisals to  enforce  her  position. 

David  Paciflco  was  a  Jew,  born  at  Gibraltar,  but  in  1847  resident  at 
Athens.  By  virtue  of  his  birth,  he  was  entitled  to  the  character  of 
a  British  subject ;  he  had  represented  himself  in  that  character  and 
had  a  British  passport. 

It  was  customary  in  Greece  for  the  people  to  signalize  the  festival 
of  Easter  by  burning  an  effigy  of  Judas  Iscariot;  but  out  of  a  regard 
for  Mr.  Charles  de  Pothschild,  who  was  at  Athens  in  April,  1847,  the 
police  were  ordered  to  prevent  this  popular  ceremony  in  that  year. 
The  mob,  attributing  this  action  of  the  Athenian  authorities  to  the 
influence  of  the  Jews,  was  highly  incensed  against  that  sect;  and 
proceeded  to  attack  and  plunder  the  house  of  M.  Paciflco,  Avhich  hap- 
pened to  stand  near  the  place  where  the  effigy  was  wont  to  be  burned. 
While  his  house  was  being  plundered,  the  family  of  M.  Paciflco 
received  the  grossest  ill-treatment.  M.  Paciflco  lodged  a  comjilaint 
with  the  procureur-general  of  the  king,  who,  on  the  very  day  of  the 
riot,  held  an  inquest  on  the  spot,  and  heard  the  testimony  of  the 
injured  parties,  but  the  Greek  government  took  no  further  action 
in  the  matter.  M.  Paciflco,  believing  that,  by  reason  of  the  odium 
in  which  his  race  was  held  in  Greece,  he  would  not  be  likely  to 
obtain  redress  through  his  own  efforts,  applied  to  the  British  minis- 


CHAP.  I.]  CASE   OF   DOX   PACIFICO.  247 

ter  at  Athens,  Sir  Edmund  Lyons.  This  gentleman  called  the  atten- 
tion of  the  Greek  government  to  the  facts  of  the  ease;  but  his  note 
was  left  unanswered  for  nme  months,  although  he  wrote  several 
times  subsequently,  and  when,  in  January,  1848,  he  finally  received 
an  answer,  it  was  (juite  unsatisfactoiy.  The  government  of  Greece 
suggested  that  M.  Pacifico  should  collect  his  damages,  through  the 
ordinary  courts,  from  the  persons  who  took  part  in  the  riot. 

There  were  other  British  claims  pending  against  Greece,  some  of 
which  were  of  long  standing,  and  as  no  satisfaction  could  be  obtained 
from  the  Greek  government,  Mr.  Wyse,  successor  to  Sir  Edmund 
Lyons,  was  instructed,  in  December,  1849,  to  deliver  an  ultimatum 
to  that  government;  and  in  case  it  was  rejected,  Admiral  Parker, 
commanding  the  English  fleet  in  the  Mediterranean,  was  ordered  to 
lay  an  embargo  upon  Greek  shipping.  The  demands  of  the  ultima- 
tum were  rejected,  and  the  embargo  was  immediately  enforced, 
several  Greek  ships  of  war  and  many  merchant  vessels  being  seized 
and  detained  in  the  Piraeus. 

Shortly  afterwards,  in  February,  1850,  French  mediation  was  ac- 
cepted, pending  which,  active  measures  were  suspended  on  the 
part  of  the  English  fleet.  Mr.  Wyse  and  Baron  Gros,  the  French 
mediator,  came  to  an  agreement  upon  all  points  at  issue  save 
one;  namely,  a  demand  of  indemnity  by  Pacifico  for  the  loss  of 
papers  which,  he  alleged,  were  evidences  of  a  valid  claim  by  him 
against  the  Portuguese  government  for  twenty-one  thousand  pounds. 
Mr.  Wyse  proposed  that  the  Greek  government  should  put  into  his 
hands  a  sum  of  money  as  security  for  the  piyment  of  this  claim,  if, 
after  investigation,  it  should  appear  to  be  well-founded.  Baron  Gros 
objected  to  this,  because  he  not  only  considered  the  claim  to  be 
worthless,  but  he  contended,  further,  that  this  demand  was  too 
humiliating  for  Greece.  Failing  to  agree  upon  this  i^oint,  Baron 
Gi'os  withdrew  from  the  negotiations ;  thereupon,  Mr.  Wyse  sent  a 
new  ultimatum  to  the  Greek  government,  and  this  time  it  was  ac- 
cepted, and  the  indemnity  demanded  immediately  paid. 

The  total  amount  of  this  indemnity  was  6,403^,  10.9,  with  the  ad- 
dition of  a  deposit  of  about  5,000/  as  security  for  the  Portuguese  claim. 
The  indemnity  awarded  included  the  following  items  :  For  personal 
injurj^  500Z;  for  loss  of  household  effects,  jewelry,  etc.,  4,267/,  Ss. 
As  to  his  Portuguese  claim,  a  commission,  having  investigated  the 
case  reported  in  1851,  that  it  could  not  be  substantiated  ;  but  in 
view  of  the  expense  he  had  incurred,  and  a  small  amount  due  him, 
he  was  awarded  150/. 

Don  Pacifico  has  usually  been  represented  as  an  adventurer  who 
had  little  claim  upon  the  sympathy  of  his  fellow-men;  and  England 


248  MEASURES  SHORT  OF  WAR.         [PART  II, 

has  generally  been  severely  criticised  for  supporting  his  claim.  Yet 
if  he  was  a  British  subject,  he  had  a  right  to  be  protected  as  such. 
He  was  born  in  British  territory,  Gibraltar,  and  his  father  was  born 
in  London.  His  letters  relating  to  this  affair  are  dignified,  and  show 
much  ability.  His  chief  crime  would  seem  to  have  been  that  of 
being  a  Jew.  The  argument  that  Pacifico  ought  to  have  resorted  to 
the  ordmary  courts  of  Greece  to  obtain  his  indemnity  is  quite  unten- 
able. What  chance  of  success  would  he  have  had  in  a  suit  against 
a  mob  of  several  hundred  persons,  to  him  unknown,  and  with  public 
opinion  against  him  ?  Indeed  he  brought  the  matter  to  the  notice  of 
the  judiciary  department  of  the  government ;  and  it  was  then  the 
duty  of  the  government  to  take  further  j^roceedings.  The  fact  would 
seem  to  be  that  the  whole  trouble  lay  in  the  weak  and  vacillating 
policy  of  the  Greek  government,  which  could  easily  have  avoided 
all  trouble  by  simply  doing  justice  to  M.  Pacifico  and  the  other 
claimants.  Whether  the  British  government  was  justified  in  resort- 
ing to  such  extreme  measures  may  be  questioned ;  but  that  some 
action  was  called  for  there  can  be  little  doubt.^ 

1  Other  cases  of  Reprisal.  The  bombardment  of  Greytovm,  1854. — "  GreytOM-n 
was  a  port  on  the  Mosquito  coast,  in  -n-liich  some  United  States  citizens  resided. 
These  citizens,  and  others  interested  with  them  in  husiness,  were  subjected  to 
gross  indignities  and  injuries  by  the  local  authorities,  who  were  British,  but  who 
professed  to  act  under  authority  from  the  king  or  chief  of  the  Mosquito  Islands. 
The  parties  injured  accordingly  appealed  to  the  commander  of  the  United  States 
sloop-of-war  Cyane,  then  lying  near  that  port,  for  protection.  To  punish  the 
authorities  for  their  action,  he  bombarded  the  town.  For  this  act  he  was  de- 
nounced by  the  British  residents,  who  claimed  that  the  British  government  had 
a  protectorate  over  that  region.  His  action  was  sustained  by  the  government  of 
the  United  States,  the  ground  being  the  necessity  of  punishing  in  this  way  a  great 
wrong  to  citizens  of  the  United  States,  and  preventing  its  continuance.  "  (1  Whar- 
ton's Digest,  p.  229,  and  II.,  p.  59.5.) 

A  favorite  form  of  reprisal  in  coercing  weaker  states  has  been  by  what  are  called 
"pacific  blockades  ;"  thus,  in  1827  "the  coasts  of  Greece  were  blockaded  by  the 
English,  French  and  Russian  squadrons,  while  the  three  powers  professed  to  be  at 
peace  with  Turkey." 

"  The  Togus  was  blockaded  by  France  in  1831,  New  Granada  by  England  in  18G1, 
Mexico  by  France  in  1838,  and  La  Plata  from  1838  to  1840  by  France,  and  from  1845 
to  1848  by  France  and  England.  "     (Hall's  International  Law,  Ed.  1890,  p.  369.) 

In  like  manner,  without  a  declaration  of  war,  France  blockaded  the  Island  of 
Formosa,  and  in  1893,  the  coast  of  Siam.  In  1886  Greece  was  blockaded  by  the 
fleets  of  nearly  all  the  great  European  powers. 


CHAP.  I.]  THE   "  BOEDUS   LUST."  249 


Sectiox  27. — Hostile  Ei^rBARGO. 


THE  "BOEDUS  LUST." 

High  Court  of  Admiralty,  1803. 

(5  C.  nobinson,  24').) 

This  was  the  case  of  a  Dutch  ship  on  a  voyage  from  Domorara  to  I'.alavia, 
embargoed  at  the  Cape  of  Good  Hope  by  an  English  squadron  before  the  actual 
declaration  of  war  against  Holland  in  1803,  and  afterwards  condemned  as  enemy's 
property. 

Sir  W.  Scott,  J. — Extract : — "  This  was  the  state  of  the  first  seiz- 
ure. It  was  at  first  equivocal ;  and  if  the  matter  in  dispute  had  termi- 
nated in  reconciliation,  the  seizure  would  have  been  converted  into  a 
mere  civil  embargo.  That  would  have  been  the  retroactive  effect  of 
that  course  of  circumstances.  On  the  contrary,  if  the  transactions  end 
in  hostility,  the  retroactive  effect  is  directly  the  other  way.  It  im- 
presses the  direct  hostile  character  upon  the  original  seizure.  It  is 
declared  to  be  no  embargo,  it  is  no  longer  an  equivocal  act,  subject 
to  two  interpretations ;  there  is  a  declaration  of  the  animus,  by  which 
it  was  done,  that  it  was  done  hostili  animo  and  is  to  be  considered 
as  an  hostile  measure  ab  initio.  The  property  taken  is  liable  to  be 
used  as  the  property  of  persons,  trespassers  ab  initio,  and  guilty  of 
injuries,  which  they  have  refused  to  redeem  by  any  amicable  altera- 
tion of  their  measures.  This  is  the  necessary  course,  if  no  particular 
compact  intervenes  for  the  restitution  of  sucli  property  taken  be- 
fore a  formal  declaration  of  hostilities.  No  such  convention  is  set  up 
on  either  side,  and  the  state,  by  directing  proceedings  against  this 
property  for  condemnation,  has  signified  a  contrary  intention. 
Accordingly  the  general  mass  of  Dutch  property  has  been  condemned 
on  this  retroactive  effect ;  and  this  property  stands  upon  the  same 
footing.^ 

1  The  object  of  a  hostile  embargo  may  be  by  way  of  reprisal  to  obtain  satisfac- 
tion for  an  alleged  injury;  or,  it  may  be,  in  the  expectation  of  the  outbreak  of  war, 
to  get  possession  of  property  which  will  presumably  be  hostile,  for  tlie  purpose  of 
confiscating  it  later— after  the  actual  outbreak  of  war.  Although  the  government 
might  restore  such  property  at  the  breaking  out  of  war,  it  has  not  been  the  prac- 
tice to  do  so;   and   hence,  as  Dana   says,  embargo  "refers  itself  directly  to  the 


250  MEASUIIES   SHORT   OF   WAK.  [PAET  II. 


Sectiox  28. — Declaration  of  "War. 


THE  "  TEUTOXIA." 

Pkivy  Council,  1870. 

(4  Privy  Council  Eejiorts,  171.) 

War  may  exist  <le  facto  without  a  declaration,  but  in  that  case  there  must  be 
actual  commencement  of  hostilities. 

Held,  that  a  state  of  war  did  not  exist  between  France  and  Prussia,  in  1870, 
prior  to  the  19th  of  July,  Mhen  a  formal  declaration  on  the  part  of  France  was 
communicated  to  the  Prussian  Government. 

The  Lord  Chief  Justice  Mellish  : — "  This  is  an  appeal  in  a  cause 
instituted  under  the  6th  section  of  the  Admiralty  Court  Act,  1861, 

question  of  the  right,  on  breaking  out  of  war,  to  seize  ships  and  cargoes  found  in 
port."'     (Daua"s  Wheaton,  p.  .372,  note.) 

In  the  case  of  Lindo  v.  Rodney,  Douglas,  61-5,  Lord  Mansfield  said,  "  .Ships  not 
knowing  of  hostilities  come  in  by  mistake;  upon  the  declaration  of  war,  or  hostil- 
ities, all  the  ships  of  the  enemy  are  detained  in  our  ports,  to  be  confiscated  as  the 
property  of  the  enemy,  if  no  reciprocal  agreement  is  made."' 

The  earlier  writers  upon  international  law  do  not  mention  embargo,  at  least 
in  the  sense  of  hostile  embargo.  Until  towards  the  end  of  the  last  century,  there 
was  really  no  distinction  made  between  property  found  on  land,  and  that  found 
afloat.  In  both  cases  it  was  liable  to  capture.  At  the  time  of  Bynkershoek  and 
of  Vattel,  private  property  of  the  enemy  was  confiscated,  though  some  treaties 
had  exempted  it  from  seizure  at  the  commencement  of  war.  (Bynkershoek,  I., 
chapter  II.)  Bynkershoek  mentions  many  cases,  too,  where  it  was  seized  before 
the  declaration  of  war.  It  was  left  to  the  English  admiralty  courts  to  formulate 
the  practice  into  legal  maxims  by  their  decisions.  As  to  the  retroactive  effect  of 
a  declaration  of  war  as  applied  by  the  courts,  it  is  apparently  a  necessary  inven- 
tion of  Sir  William  Scott  to  legalize  a  practice  already  in  vogue. 

Dr.  Lushington  said  in  18.54  (Spinks,  14),  "With  regard  to  an  enemy's  property 
coming  to  any  part  of  the  kingdom,  or  being  found  there,  being  seizable,  I  confess 
I  am  astonished  that  doubt  should  exist  on  the  subject.  I  apprehend  the  law  has 
been  this,  that  it  is  competent  for  any  person  to  take  possession  of  such  property, 
unless  it  had  any  protection  by  license,  or  by  some  declaration  emanating  by  the 
authority  of  the  crown,  and  to  assist  the  crown  to  proceed  against  it  to  adjudi- 
cation."' 

At  the  breaking  out  of  the  Crimean  War  in  18.54,  merchant  vessels  of  the  enemy 
were  allowed  by  the  belligerents  six  weeks  for  loading  their  cargoes  and  departing. 
And  further,  vessels  of  the  same  character  sailing  from  foreign  ports  prior  to  the 
promulgation  of  these  orders,  weie  allowed  to  enter  the  ports  of  the  enemy  and 


CHAP.  T.]  THE    "  TEUTONIA."  2rjl 

on  hehalf  of  Messrs.  Duncan,  Fox,  &  Co.,  the  consignees  of  a  bill  of 
lading-  of  the  cargo  laden  on  board  the  ship  Teuton  in,  against  that 
ship  and  her  freight,  and  against  the  owner  of  the  vessel. 

"  The  Teutonia  was  a  Prussian  brig,  subject  to  the  laws  of  Prussia, 
and  her  master  and  crew  were  subjects  of  the  King  of  Prussia. 

"  And  by  the  charter-party  referred  to  in  the  bill  of  lading  it  was 
agreed  that,  '  after  receiving  on  board  the  said  cargo,  the  said  vessel 
shall  proceed  either  to  Cork,  Cowes,  or  Falmouth,  at  the  option  of 
the  master,  where  he  shall  receive  orders  from  charterer's  agents 
within  three  days  after  his  arrival  to  proceed  to  any  one  safe  i)ortin 
Great  Britain  or  on  the  Continent  between  Havre  and  Hamburgh, 
both  included,  and  there,  according  to  bills  of  lading  and  charter- 
party,  deliver  the  cai'go,  "the  act  of  God,  the  Queen's  enemies,  fire, 
and  all  and  every  other  risk,  dangers,  and  accidents  of  the  seas, 
rivers,  and  navigation  of  whatever  nature  and  kind  soever  ex- 
cepted," freight  to  be  paid  in  manner  herein  mentioned  on  a  true 
and  right  delivery  of  the  cargo  in  the  port  of  discharge  at  and  after 
the  rate  of  45s.  British  sterling  per  ton.' 

"  The  vessel  arrived  at  Falmouth  on  10th  of  July  ;  and  the  master, 
whilst  there,  heard  rumours  that  war  was  probable  between  France 
and  Prussia.  On  the  lltli  of  July,  the  master  received  orders  from 
the  consignees  to  discharge  the  cargo  at  Dunkirk ;  and  he  at  once 
set  sail  for  Dunkirk,  and  arrived  at  a  distance  of  about  fourteen 
miles  off  that  port,  at  12  o'clock  at  night  of  the  IGth,  which  was  a 
Saturday ;  and  the  master  says  that,  after  lying  to  for  about  two 
hours,  a  regular  pilot,  in  official  uniform,  came  on  board ;  that  he 
asked  the  pilot  about  the  war  ;  that  the  pilot  told  him  it  had  been 
declared  two  days  ago;  that  he  asked  the  pilot  where  he  could 
bring-to  in  safety,  so  that  he  might  ascertain  whether  war  was  act- 
ually declared  or  not;  that  the  pilot  offered  to  take  him  to  Flushing, 
or  the  Downs,  or  wherever  he  liked.  The  master  elected  to  go  to 
the  Downs ;  and  he  anchored  there  on  Sunday  morning,  the  17th,  at 
10  o'clock.     He  says,  that  on  that  day  he  could  obtain  no  advice  or 

dischargo.  their  cargoes  and  to  depart.  The  initiation  of  tliis  modification  of  the 
old  rule  in  this  war  seems  to  have  been  taken  by  Turkey  in  her  declaration  of  war 
against  Russia,  October  4,  IS-Jo.  "  The  Sublime  Porte,  however,  does  not  consider 
it  just  that,  agreeably  to  ancient  usage,  an  embargo  should  be  laid  on  Russian  mer- 
chant vessels.  Accordingly  they  will  be  warned  to  proceed  within  a  period  to  be 
fixed  hereafter  to  the  Black  Sea  or  to  the  Mediterranean,  as  they  choose." 
(Halleck,  p.  .364.     Hertslet,  II. ,  1176.) 

The  departure  from  the  old  rule  in  this  case,  coupled  with  the  numerous  treaties 
stipulating  for  time  for  the  removal  of  vessels  in  case  of  war,  go  far  towards  creat- 
ing that  change  of  practice  which  ultimately  changes  the  law  of  nations.  (Dana's 
Wheat  on,  note  Xo.  15G.) 


252  MEASURES  SHORT  OF  WAR.         [PAET  II. 

information  ;  that  on  the  Monday,  the  IStli,  he  was  on  shore  at  Deal, 
and  the  German  consul  told  him  that  war  had  broken  out.  He 
telegraphed  to  the  owner,  who  was  his  father,  and  received  an 
answer,  forbidding  him  to  go  to  Dunkirk  ;  and  on  Tuesday  the  19th 
he  took  the  ship  into  Dover,  as  the  nearest  port. 

"  On  the  same  19th  of  July,  the  French  declaration  of  war  was 
delivered  to  the  Prussian  Government  at  Berlin,  w'hieh  was  known 
the  same  day  by  telegraph  in  England.  On  the  2od  of  July,  an 
agent  of  the  plaintiffs  went  to  Dover,  and  required  the  master  to 
proceed  to  Dunkirk,  which  he  refused  to  do.  Afterwards,  on  the  1st 
of  August,  the  plaintiffs  required  the  master  to  deliver  them  the 
cargo  at  Dover,  which  he  refused  to  do  unless  he  was  paid  his 
freight. 

"  Under  these  circumstances,  the  plaintiffs  allege  that  the  master 
has  committed  two  breaches  of  contract  or  duty  :  first  in  refusing  to 
proceed  to,  and  deliver  the  cargo  at,  Dunkirk ;  and  secondly,  they 
complain  that,  when  the  performance  of  the  contract  became  impos- 
sible, and  the  contract  was,  as  they  allege,  dissolved  by  the  war,  the 
master  was  not  justified  in  refusing  to  deliver  the  cargo  to  the  plaint- 
iffs at  Dover  without  jDayment  of  freight. 

"  The  first  question  to  be  considered  is,  whether  the  master  was 
bound  to  have  entered  the  port  of  Dunkirk  on  the  17th  of  Jul}' ;  and 
on  that  question,  the  learned  Judge  (Sir  R.  Phillimore)  in  the  court 
below  has  found  that  on  the  16th  of  July,  the  Teutonia  could  not  have 
entered  the  port  of  Dunkirk  with  her  cargo  without  being  exposed 
to  the  penalties  of  trading  with  the  enemy  of  her  country  ;  but  that, 
if  this  was  an  erroneous  application  of  the  law  to  the  facts  at  that 
date,  the  circumstances  justified  the  master  in  pausing  and  making 
further  inquiries  as  to  the  existing  relations  between  his  own  coun- 
try and  France,  and  that  he  did  not  exceed  the  limits  of  a  reasonable 
time  in  making  the  inquiry. 

"  Their  Lordships  have  great  difficulty  in  agreeing  with  the 
learned  Judge  that  the  Teutonia  could  not  have  entered  Dunkirk 
without  being  exposed  to  the  penalties  of  trading  with  the  enemy  of 
its  country  on  the  16th  of  July.  There  does  not  appear  to  their 
Lordships  to  be  any  satisfactory  evidence  that  a  state  of  war  existed 
between  France  and  Prussia  prior  to  the  19th  of  July. 

"  Their  Lordships  do  not  think  that  either  the  declaration  made 
by  the  French  Minister  to  the  French  Chambers  on  the  16th  of 
July,  or  the  telegram  sent  by  Count  Bismarck  to  the  Prussian  Am- 
bassador in  London,  in  which  he  states  that  that  declaration  appears 
to  be  equal  to  a  declaration  of  war,  amoimts  to  actual  declaration  of 
war.     And  though  it  is  true,  as  stated  by  the  learned  Judge,  that  a 


CHAP.  I.]  THE    ''TEUTOXIA."'  253 

war  may  exist  de  facto  without  a  declaration  of  war,  yet  it  appears 
to  their  Lordships  that  this  can  only  be  effected  by  an  actual  com- 
mencement of  hostilities,  which,  in  this  case,  is  not  alleged. 

"  It  is,  however,  unnecessary  further  to  consider  this  part  of  the 
case,  because  their  Lordships  agree  with  the  learned  Judge  that  the 
master  of  the  Teutoma,  when  he  was  informed,  on  his  arrival  off 
Dunkirk,  by  the  pilot,  although  incorrectly,  that  war  had  been 
actually  declared  two  days  before,  was  entitled  to  pause  and  to  take 
a  reasonable  time  to  make  fuilher  iiuiuiries,  and  that  he  did  not 
exceed  the  limits  of  a  reasonable  time  in  making  in({uiries. 

"If  the  master  had  entered  Dunkirk,  and  it  had  turned  out  that 
war  had  been  previously  declared,  he  would  have  entered  it  with 
notice  that  he  was  entering  an  enemy's  port,  and  this  would  have 
obviously  exposed  his  ship  to  condenmation,  and  might  have  exposed 
himself  to  severe  penalties  when  he  returned  to  his  own  country. 
It  seems  obvious  that,  if  a  master  receives  credible  information  that, 
if  he  continues  in  the  direct  course  of  his  voyage,  his  ship  will  be 
exposed  to  some  imminent  peril,  as,  for  instance,  that  there  are 
pirates  in  his  course,  or  icebergs,  or  other  dangers  of  navigation,  he 
nuist  be  justified  in  pausing  and  deviating  from  the  direct  course, 
and  taking  any  step  which  a  prudent  man  would  take  for  the 
purpose  of  avoiding  the  danger.  And  their  Lordships  agree,  if 
authority  was  wanting,  that  the  case  of  Pole  v.  CetcovitcJi,  9  C.  B. 
(n.  s.),  430,  is  an  authority  in  point.  It  was  ai'gued,  however,  on  the 
part  of  the  appellants,  that,  to  justify  this  course,  both  ship  and 
cargo  nmst  be  exposed  to  a  common  peril,  whilst  in  the  present  case 
the  cargo,  being  the  property  of  a  neutral  owner,  would  have  been 
in  no  danger  from  being  carried  into  a  French  port,  and  it  was 
argued  that  though  a  master  might  be  justified  in  deviating  from 
the  direct  course  of  the  voyage  for  the  purpose  of  avoiding  a  danger 
to  which  both  ship  and  cargo  were  exposed,  although  it  might  after- 
wards turn  out  that  the  information  upon  which  the  master  acted 
was  incorrect,  yet  that  if  the  reported  danger  was  a  danger  to  the 
ship  alone,  the  master  would  commit  a  breach  of  contract  by  deviat- 
ing from  the  direct  course  of  the  voyage  unless  the  danger  actually 
existed,  and  the  master  could  allege  that  he  Avas  prevented  by  one 
of  the  perils  excepted  in  the  bill  of  lading  from  pursuing  his  voyage 
in  the  direct  course.  It  appears  to  their  Lordships,  however,  that 
there  is  no  sound  ground  for  this  distinction  ;  if  the  cargo  had  been 
a  Prussian  cargo  it  would  have  been  exposed  to  the  same  danger  as 
the  ship  from  entering  the  port  at  Dunkirk,  and  it  appears  to  their 
Lordships  that  when  an  English  merchant  ships  goods  on  boai"d  a 
foreign  ship,  he  cannot  expect  that  the  master  will  act  in  any  respect 


254  MEASURES    SHOKT    OF    WAR.  [I'ART  H. 

differently  towards  his  cargo  than  he  would  towards  a  cargo  shipped 
by  one  of  his  own  country,  and  that  it  cannot  be  contended  that  the 
master  is  deprived  of  the  right  of  taking  reasonable  and  prudent 
steps  for  the  preservation  of  his  ship,  because  from  the  accident  of 
the  cargo  not  belonging  to  his  own  nation,  the  cargo  is  not  exposed 
to  the  same  danger  as  the  ship. 

"  On  the  whole,  therefore,  tlieir  Lordships  are  of  opinion,  on  this 
part  of  the  case,  that  tlie  master  \A'as  justitied  ingoing  to  the  Downs 
for  the  purpose  of  ascertaining  whetlier  war  liad  actually  been 
declared ;  and  they  also  entirely  agree  with  the  opinion  of  the 
learned  Judge,  that  the  master  was  guilty  of  no  unreasonable  dela  v  in 
not  returning  to  Dunkirk  before  war  was  actually  declared  on  the  19th 
of  July." 

[The  Lords  next  consider  "  Whether  the  master  was  bound  to 
deliver  the  cargo  at  Dover  without  any  payment  in  respect  of 
freight?" 

The  decision  is  made  in  accordance  with  English  law,  and,  in  sub- 
stance, is  as  follows :  ^Yllile  the  breaking  out  of  the  war  did  render 
it  illegal  for  the  Teutonia  to  enter  a  French  port,  yet  the  contract, 
under  the  particular  terms  of  the  charter-party,  could  be  legally  per- 
formed by  the  delivery  of  the  cargo  at  some  of  the  other  ports  men- 
tioned in  the  charter-party — that  the  contract  was  not  dissolved  by 
the  impossibility  of  delivering  the  cargo  at  Dunkirk,  and  that  the 
ship-owner  had  not  lost  his  chartered  freight  nor  his  lien  for  it  at  the 
time  when  the  cargo  w'as  demanded  at  Dover.] 


THE  PRIZE  CASES.  (1) 

Sl'preme  Court  of  the  Uxited  States,  1862. 
{2  Black.,  G65.) 

The  character  of  a  civil  war — A  civil  war  is  never  solemnly  declared — The  powers 
of  the  President  of  the  United  States  in  the  case  of  civil  war. 

Held,  that  the  President  had  the  right,  under  the  Constitution,  to  institute  the 
blockade  of  the  ports  of  the  rebellious  States  in  1861  ;  and  that  the  pioclaiiiation 
of  blockade  was  itself  official  and  conclusive  evidence  to  the  court  that  a  gtale  of 
war  existed. 

Judgment, — Mr.  Justice  Grier  : — "  There  are  certain  propositions  of 
law  which  must  necessarily  alfect  the  ultimate  decision  of  these  cases, 
and  many  others,  whicli  it  will  be  proper  to  discuss  and  decide 
before  "\ve  notice  the  special  facts  peculiar  to  each. 


CHAP.  I.]  THE   rPJZE   CASES.  255 

"  They  are,  1st.  Had  the  President  a  right  to  institute  a  l)lock- 
ade  of  ports  in  ]30Ssession  of  jiersons  in  armed  rel^eUion  against  the 
Government,  on  the  principles  of  mternational  law,  as  known  and 
acknowledged  among  civilized  states? 

"  2d.  Was  the  property  of  persons  domiciled  or  residing  within 
those  States  a  proper  subject  of  capture  on  the  sea  as  '  enemies' 
property  ? ' 

"  I.  Neutrals  have  a  right  to  challenge  the  existence  of  a  block- 
ade de  facto,  and  also  the  authority  of  the  party  exercising  the  right 
to  institute  it.  They  have  a  right  to  enter  the  ports  of  a  friendly 
nation  for  the  inirposes  of  trade  and  commerce,  but  are  bound  to 
recognize  the  rights  of  a  belligerent  engaged  in  actual  war,  to  use 
this  mode  of  coercion,  for  the  purpose  of  subduing  the  enemy. 

"That  a  blockade  cle  facto  actually  existed,  and  was  formally  de- 
clared and  notified  by  the  President  on  the  27th  and  30th  of  ^Vpril, 
1861,  is  an  admitted  fact  m  these  cases. 

"  That  the  President,  as  the  Executive  Chief  of  the  Goveinment 
and  Commander-in-chief  of  the  Army  and  Xavy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be  dis- 
puted. 

"  The  right  of  prize  and  capture  has  its  origin  in  the  \jus  helli^ 
and  is  governed  and  adjudged  under  the  law  of  nations.  To  legiti- 
mate the  capture  of  a  neutral  vessel  or  property  on  the  high  seas,  a 
war  must  exist  de  facto,  and  the  neutral  must  have  a  knowledge  or 
notice  of  the  intention  of  one  of  the  parties  belligerent  to  use  this 
mode  of  coercion  against  a  port,  city,  or  territory,  in  possession  of 
the  other. 

"  Let  us  inquire  whether,  at  the  time  this  blockade  Avas  instituted, 
a  state  of  war  existed  which  would  justify  a  resort  to  these  means  of 
subduing  the  hostile  force. 

"War  has  been  well  defined  to  be,  'That  state  in  which  a  nation 
prosecutes  its  right  by  force.' 

"  The  parties  belligerent  in  a  public  war  are  independent  nations. 
But  it  is  not  necessary  to  constitute  war,  that  both  parties  should  be 
acknowledged  as  independent  nations  or  sovereign  states.  A  war 
may  exist  where  one  of  the  belligerents  claims  sovereign  rights  as 
against  the  other.  Insurrection  against  a  government  may  or  may 
not  culminate  in  an  organized  rebellion,  but  a  civil  war  always  begins 
by  insurrection  against  the  lawful  nuthority  of  the  Government.  A 
civil  war  is  never  solemnly  declared ;  it  becomes  such  Ijy  its  acci- 
dents— the  number,  power,  and  organization  of  the  persons  who 
originate  and  carry  it  on.  When  the  party  in  rebellion  occupy  and 
hold  in  a  hostile  manner  a  certahi  portion  of  territory  ;  have  declared 


256  MEASURES  SHORT  OF  WAR.         [PART  H. 

their  independence ;  have  cast  oft'  tlieir  allegiance ;  have  organized 
armies  ;  have  commenced  hostilities  against  their  former  sovereign, 
tlie  world  acknowledges  them  as  belligerents,  and  the  contest  a  loar: 
The;/  claim  to  be  in  arms  to  establish  their  liberty  and  independence, 
in  order  to  become  a  sovereign  state,  while  the  sovereign  party  treats 
them  as  insurgents  and  rebels  who  owe  allegiance,  and  who  should 
1)6  })unished  with  death  for  their  treason. 

"  The  laws  of  war,  as  established  among  nations,  have  their 
foundation  in  reason,  and  all  tend  to  mitigate  the  cruelties  and 
misery  produced  by  the  scourge  of  war.  Hence  the  parties  to  a  civil 
war  usually  concede  to  each  other  belligerent  rights.  They  exchange 
prisoners,  and  adopt  the  other  courtesies  and  rules  connuon  to  public 
or  national  w  ars. 

" '  A  civil  war,'  says  Yattel,  '  breaks  the  bands  of  society  and  gov- 
ernment, or  at  least  suspends  their  force  and  effect ;  it  produces  in 
the  nation  two  independent  parties,  who  consider  each  other  as 
enemies,  and  acknowledge  no  common  judge.  Those  two  parties, 
therefore,  must  necessarily  be  considered  as  constituting,  at  least  for 
a  time,  two  separate  bodies,  two  distinct  societies.  Having  no  common 
superior  to  judge  between  them,  they  stand  in  j)recisely  the  same 
predicament  as  two  nations  who  engage  in  a  contest  and  have 
recourse  to  arms. 

" '  This  being  the  case,  it  is  very  evident  that  the  common  laws 
of  war — those  maxims  of  humanity,  moderation,  and  honor — ought 
to  be  observed  by  both  parties  in  every  civil  war.  Should  the 
sovereign  conceive  he  has  a  right  to  hang  up  his  prisoners  as  rebels 
the  opposite  party  will  make  reprisals,  etc.,  etc. ;  the  war  will  become 
cruel,  horrible,  and  every  day  more  destructive  to  the  nation.' 

"  As  a  civil  war  is  never  publicly  proclaimed,  eo  nomine  against 
insurgents,  its  actual  existence  is  a  fact  in  our  domestic  history 
w'hich  the  court  is  bound  to  notice  and  to  know.  The  true  test  of 
its  existence  as  found  in  the  writing  of  the  sages  of  the  common  law, 
may  be  thus  summarily  stated:  '  Wlien  the  regular  course  of  justice 
is  interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  the  Courts 
of  Justice  caiuiot  be  kept  open,  ciml  var  exists  and  hostilities  may 
be  prosecuted  on  the  same  footing  as  if  those  opposing  the  Govern- 
ment were  foreign  enemies  invading  the  land,' 

"By  the  Constitution,  Congress  alone  has  the  power  to  declare  a 
national  or  foreign  war.  It  cannot  declare  war  against  a  State,  or 
any  number  of  States,  by  virtue  of  any  clause  in  the  Constitution. 

"  The  Constitution  confers  on  the  President  the  whole  executive 
power.  He  is  bound  to  take  care  that  the  laws  be  faithfully  executed. 
He  is  Connnander-in-chief  of  the  Army  and  Navy  c^f  the  United 


CHAP.  1.]  THE   PRIZE   CASES.  257 

States,  and  of  the  militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States.  lie  has  no  power  to  initiate  or 
declare  a  war  either  ag-ainst  a  foreign  nation  or  a  domestic  State. 
But  by  the  Acts  of  Congress  of  February  "Jsili,  1705,  and  3d  of 
March,  1807,  he  is  authorized  to  call  out  the  militia  and  use  the 
military  and  naval  forces  of  the  United  States  in  case  of  invasion  by 
foreign  nations,  and  to  suppress  insurrection  against  the  government 
of  a  State  or  of  the  United  States. 

"If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is 
not  oidy  authorized  but  bound  to  resist  force  by  force.  He  does  not 
initiate  the  war,  but  is  bound  to  accept  the  challenge  without  wait- 
ing for  any  special  legislative  authorit}'.  And  whether  tiie  hostile 
party  be  a  foreign  invader,  or  States  orgaiiized  in  rebellion,  it  is  none 
the  less  a  war,  although  the  declaration  of  it  be  'unilateral.'  Lord 
Stowell  (1  Dodson,  '247)  observes,  '  It  is  not  the  less  a  war  on  tlmt 
(tccoKiit,  for  war  may  exist  without  a  declaration  on  either  side.  It 
is  so  laid  down  by  the  best  writers  on  the  law  of  nations.  A  decla- 
ration of  war  by  one  country  only,  is  not  a  mere  challenge  to  be  ac- 
cepted or  refused  at  pleasure  by  the  other.' 

"The  battles  of  Palo  .VI to  and  IJesacade  la  Palma  had  been  fought 
before  the  passage  of  the  Act  of  Congress  of  May  13th,  1846,  which 
recognized  '«  state  of  loar  as  existin;/  by  the  act  of  the  Republic  of 
Mexico.  This  act  not  only  provided  for  the  future  prosecution  of 
the  Avar,  but  w^as  itself  a  vindication  and  ratification  of  the  Act  of 
the  President  in  accepting  the  challenge  without  a  previous  formal 
declaration  of  war  by  Congress.  This  greatest  of  civil  wars  was  not 
gradually  developed  by  poi)ular  commotion,  tumultuous  assemblies, 
or  local  unorganized  insurrections.  However  long  may  have  been 
its  previous  conception,  it  nevertheless  sprung  forth  suddenly  from 
the  parent  brain,  a  Minerva  in  the  fall  panoply  of  \car.  The  Presi- 
dent was  bound  to  meet  it  in  the  shape  it  presented  itself,  without 
waiting  for  Congress  to  baptize  it  with  a  name;  and  no  name  given 
to  it  by  him  or  them  could  change  the  fact. 

"It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile 
array,  because  it  may  be  called  an  Musurrection'  by  one  side,  and  the 
insurgents  be  considered  as  rebels  or  traitors.  It  is  not  necessary 
that  the  independence  of  the  revolted  province  or  state  be  acknowl- 
edged in  order  to  constitute  it  a  party  belligerent  in  a  war  according 
to  the  law  of  nations.  Foreign  nations  acknowledge  it  as  war  by  a 
declaration  of  neutrality.  The  condition  of  neutrality  cannot  exist 
unless  there  be  two  belligerent  parties.  In  the  case  of  the  Santissima 
Trinidad  (7  Wheaton,  337),  this  Court  say  :  '  The  Government  of  the 
United  States  has  recognized  the  existence  of  a  civil  war  between 
17 


258  MEASURES    SHORT   OF    WAR.  [RART  II. 

Spain  and  her  colonies,  and  lias  avowed  her  determination  to  remain 
neutral  between  the  parties.  Each  X)arty  is  therefore  deemed  hy  us 
a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sovereign  right 
of  war. '     (See  also  3  Beini.,  252.) 

"As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the 
organization  of  a  government  by  the  seceding  States,  assuming  to 
act  as  belligerents,  could  become  known  in  Europe,  to  wit,  on  the 
loth  of  ^lay,  1861,  the  Queen  of  England  issued  her  proclamation  of 
neutrality,  'recognizing  hostilities  as  existing  between  the  Govern- 
ment of  the  United  States  of  America  and  certain  /States  styling  them- 
selves the  Confederate  States  of  America.'  This  was  inniiediately 
followed  by  similar  declarations  or  silent  acquiescence  by  other 
nations. 

"After  such  an  official  recognition  by  the  sovereign,  a  citizen  of  a 
foreign  state  is  estopped  to  deny  the  existence  of  a  war  with  all  its 
consequences  as  regards  neutrals.  They  cannot  ask  a  Court  to  affect 
a  technical  ignorance  of  the  existence  of  a  w^ar,  which  all  the  world 
acknowledges  to  be  the  greatest  civil  war  known  in  the  history  of  the 
human  race,  and  thus  cripple  the  arm  of  the  Government  and  para- 
lyze its  power  by  subtle  definitions  and  ingenious  sophisms. 

"The  law  of  nations  is  also  called  the  law  of  nature;  it  is  founded 
on  the  common  consent  as  well  as  the  common  sense  of  the  world. 
It  contains  no  such  anomalous  doctrine  as  that  which  this  Court  are 
now  for  the  first  time  desired  to  pronounce,  to  wit :  That  insurgents 
who  have  risen  in  rebellion  against  their  sovereign,  expelled  her 
Courts,  established  a  revolutionary  government,  organized  armies, 
and  commenced  hostilities,  are  not  enemies,  because  they  are  traitors  ; 
and  a  war  levied  on  the  Government  by  traitors,  in  order  to  dismem- 
ber and  destroy  it,  is  not  a  tear,  because  it  is  an  '  insurrection.' 

"Whether  the  President  in  fulfilling  his  duties  as  Commander- 
in-chief,  in  suppressing  an  insurrection,  has  met  with  such  armed 
hostile  resistance,  and  a  civil  war  of  such  alarming  proportions  as 
will  compel  him  to  accord  to  them  the  character  of  belligerents,  is  a 
question  to  be  decided  bi/  him,  and  this  Court  must  be  governed  by  the 
decisions  and  acts  of  the  political  department  of  the  Government  to 
wiiich  this  power  was  entrusted.  '  He  must  determine  what  degree  of 
force  the  crisis  demands.'  The  proclamation  of  blockade  is  itself 
official  and  conclusive  evidence  to  the  Court  that  a  state  of  war 
existed  which  demanded  and  authorized  a  recourse  to  such  a  measure, 
under  the  circumstances  peculiar  to  the  case. 

"  The  correspondence  of  Lord  Lyons  with  the  Secretary  of  State 
admits  the  fact  and  concludes  the  question. 

"If  it  were  necessary  to  the  technical  existence  of  a  war,  that 


CHAP.  I.]  THE   PRIZE   CASES.  259 

it  sliould  have  leg^islative  sanction,  -we  find  it  in  almost  every  act 
passed  at  the  extraordinary  session  of  the  Legiskiture  of  1861,  which 
was  wholly  employed  in  enacting  laws  to  enable  the  Government  to 
prosecute  the  war  with  vigor  and  efficiency.  And  finally,  in  1861, 
we  find  Congress  '■ex  majore  cautela''  and  in  anticipation  of  such 
astute  objections,  passing  an  act  <  approving,  legalizing  and  making 
valid  all  the  acts,  proclamations  and  orders  of  the  President,  etc.,  as 
if  they  had  l>een  issued  ami  done  wider  the  previous  express  authority 
and  direction  of  the  Congress  of  the  United  States. ' 

"  Without  admitting  that  such  an  act  was  necessary  under  the 
circumstances,  it  is  plain  that  if  the  President  had  in  any  manner 
assumed  powers  which  it  was  necessary  should  have  the  authority  or 
sanction  of  Congress,  that  on  the  well-known  principle  of  law,  '■omnis 
ratihahitio  retrotrahiti(r,  et  mandato  equiparatur, '  this  ratification 
has  operated  to  perfectly  cure  the  defect.  In  the  case  of  Brown  v. 
United  States  (8  Cr.,  1.31,  1.32,  133),  Mr.  .Justice  Story  treats  of  this 
subject,  and  cites  numerous  authorities  to  which  we  may  refer  to 
prove  this  position,  and  concludes,  '  I  am  perfectly  satisfied  that  no 
sul)ject  can  commence  hostilities  or  capture  property  of  an  enemy, 
when  the  sovereign  has  prohibited  it.  But  suppose  he  did,  I  would 
ask  if  the  sovereign  may  not  ratify  his  proceedings,  and  thus  by 
a  retroactive  operation  give  validity  to  them  ? ' 

"  Although  Mr.  .Justice  Story  dissented  from  the  majority  of  the 
Court  on  the  whole  case,  the  doctrine  stated  by  him  on  this  point  is 
correct  and  fully  substantiated  by  authority. 

"The  objection  made  to  this  act  of  ratification,  that  it  is  ex  post 
facto,  and  therefore  unconstitutional  and  void,  might  possibly  have 
some  weight  on  the  trial  of  an  indictment  in  a  criminal  court.  But 
precedents  from  that  source  cannot  be  received  as  authoritative  in 
a  tribunal  administering  public  and  international  law. 

"  On  this  first  question,  therefore,  we  are  of  opinion  that  the  Presi- 
dent had  a  right,  J?<re  belli,  to  institute  a  blockade  of  ports  in  posses- 
sion of  the  States  in  rebellion,  which  neutrals  are  bound  to  regard.  " 
(See  the  remainder  of  this  decision  under  §  33.) 


CHAPTER  11. 

EFFECTS  OF  WAR  AS  BETWEEN  ENEMIES. 


Section'  29. — Exemy's  Property  within  the  Territory,  and  Debts 

DUE  TO  THE  ExEMY. 


WARE  V.  HYLTOX. 

Supreme  Court  of  the  Uxited  States,  1796. 

(5  Dallas.  199.) 

All  the  justices  admitted — some  however  with  great  reluctance — that,  in  strict 
law,  debts  due  to  an  enemy  might  be  confiscated.  But  this  point  was  not  neces- 
sary to  the  decision;  for  the  act  of  confiscation  in  question  (of  Virginia)  was  hfhi 
to  be  annulled  by  the  4th  article  of  the  treaty  of  1783  with  England. 

Chase,  J. — "  The  defendant  in  error,  on  the  *  *  *  day  of  Jul5%  1774, 
passed  their  penal  l)ond  to  Farrell  and  Jones  for  the  paj^nient  of  £2,976 
U.S.  (id.,  of  good  British  mone3^  In  1777,  the  war  of  the  revolution 
having  broken  out,  the  legislature  of  Virginia  passed  a  law  to  sequester 
British  property  ;  the  Bd  section  of  which  was  as  follows  : 

"  '  That  it  should  be  lawful  for  any  citizen  of  Virginia,  owing  money 
to  a  subject  of  Great  Britain)  to  pay  the  same,  or  any  part  thereof, 
etc.,  *  *  *  into  the  loan-office,  taking  thereout  a  certificate  for  the  same, 
in  the  name  of  the  creditor,  with  the  endorsement,  under  the  hand 
of  the  commissioner  of  said  office,  expressing  the  name  of  the  payer.' 
The  Governor  and  council  were  to  see  to  the  safekeeping  of  such 
sums,  subject  to  the  future  directions  of  the  legislature.  In  1780 
the  defendants  (in  error)  paid  into  the  loan-office  a  part  of  their 
debt,  in  accordance  with  stipulations  of  the  above  law.  After  the 
return  of  peace,  they  were  sued  in  the  above  bond  in  the  circuit 
court  of  Virginia ;  and  pleaded  the  said  law  of  the  legislature  of 
20U 


CHAP.  II.]  WARE   V.  HILTON.  201 

Virgiiiiii,  and  the  payment  therenndoi-,  in  bar  of  so  much  of  the 
plaintilfs  debt.  The  phiintitf,  to  avoid  tliis  bar,  rephed  the  fourth 
article  of  the  Treaty  of  Peace  between  Great  Britain  and  the  United 
States,  of  1783.  For  this  replication  there  was  a  g-eneral  dennii'rer 
and  rejoinder.  The  circuit  court  allowed  the  denmrrer,  and  the 
plaintiff  brought  the  present  writ  of  error. 

"The  counsel  for  the  plaintiff  denied  that  the  Virginia  legislature 
was  competent  to  pass  such  a  law ;  first,  because  it  was  contrary  to 
the  law  of  nations,  relying  on  Vattel  (lib.  3,  c.  5,  sec.  77) ;  and, 
secondly,  that  the  legislature  was  not  competent  inasnuich  as  all 
such  power  belonged  exclusively  to  Congress.  But  it  was  held  by 
the  court  that  at  the  time  of  passing  the  law,  Virginia  was  a  free 
and  independent  state,  inasmuch  as  Congress  as  well  as  the  several 
individual  states  had  declared  their  independence ;  and  the  articles 
of  confederation  had  not  yet  been  ratified.  Supposing  a  general 
right  to  confiscate  British  property  is  admitted  to  be  in  Congress, 
then  the  same  right  belonged  to  the  legislature  of  Virginia  at  the 
time  of  passing  the  act.  '  The  legislative  power  of  every  nation  can 
only  be  restrained  by  its  own  constitution;  and  it  is  the  duty  of  its 
courts  of  justice  not  to  question  the  validity  of  any  law  made  in  pur- 
suance of  the  constitution.  In  this  case  the  law  is  obligatory  on  the 
courts  of  Virginia,  and  in  my  opinion  on  the  courts  of  the  United 
States.'  If  Virginia,  as  a  sovereign  state,  violated  the  ancient  or 
modern  law  of  nations,  in  making  the  law  of  the  "iOth  Oct.,  1777,  she 
was  answerable  in  her  political  capacity  to  the  British  nation,  whose 
subjects  have  been  injured  in  consequence  of  that  law.' 

"  It  appears  to  me  that  every  nation  at  war  with  another  is  justi- 
fied, by  the  general  and  strict  law  of  nations,  to  seize  and  confiscate 
all  movable  property  of  its  enemy  (of  any  kind  or  nature  whatever) 
wherever  found,  whether  within  its  territory  or  not."  (Byidvershoek, 
Q.  J.  P.  de  rebus  bellices,  lib.  1,  c.  7,  pp.  175,  177;  Vattel,  B.  4,  sec. 
221 ;    Sir  Thomas  Parker's  Rep.,  267.  y 

^  The  case  reported  in  Parker  (11  William  III.)  is  Attorney-General  v.  Weeden 
((nil  Shales.  Tliis  was  the  case  of  a  naturalized  Frenchman  who  died  during  the 
war,  leaving  in  his  will  severallegacies  to  Frenchmen  living  in  Bordeaux.  A  com- 
mission was  issued  to  investigate  the  matter  ;  but  peace  was  made  meantime  ten 
days  before  the  inquisition  was  found,  and  returned.  And  after  long  debate,  it 
was  resolved  :  "First,  that  chose  in  action  which  belonged  to  an  alien  enemy  were 
forfeitable  to  the  crown. 

"Secondly,  that  this  ought  to  be  found  by  inquisition  to  make  a  title  to  the  King  ; 
and  that  this  was  an  inquisition  of  entitling,  and  not  of  instruction.  {Pa</e's 
Case,  6  Co.,  .52). 

"Thirdly,  that  the  peace  being  concluded  before  the  inquisition  was  taken,  dis- 
charged the  cause  of  forfeiture. 


262  EFFECTS    OF   WAR    AS   BETWEEN    ENEMIES.       [PART  II. 

"  The  right  to  confiscate  the  property  of  enemies  during  war  is  de- 
rived from  a  state  of  war ;  and  is  called  the  rights  of  war.  This 
right  originates  from  self-preservation,  and  is  adopted  as  one  of  the 
means  to  weaken  an  enemy,  and  to  strengthen  ourselves.  Justice, 
also,  is  another  pillar  on  which  it  may  rest ;  to  wit,  a  right  to  re- 
imburse tiie  expense  of  an  unjust  war.  (Vattel,  lib.  3,  c.  8,  sec.  138 ; 
and  c.  9,  sec.  161.) 

"  Vattel  is  the  only  author  relied  on  (or  that  can  be  found)  to 
maintain  the  distinction  between  confiscating  private  debts,  and  other 
property  of  an  enem3^  Mr.  Lee  says,  '  By  the  law  of  nations,  rights 
and  credits  are  not  less  in  our  power  than  other  goods ;  why,  there- 
fore, should  we  regard  the  rights  of  war  in  regard  to  one,  and 
not  as  to  the  others '?  And  when  notlimg  occurs  which  gives  room 
for  a  proper  distinction,  the  general  law  of  nations  ought  to  prevail.' 
He  gives  many  examples  of  confiscating  debts,  and  concludes  (p.  110), 
'  All  which  prove,  that  not  only  actions,  but  all  other  thmgs  wliat- 
ever,  are  forfeited  in  time  of  war.'     (Lee  on  Capture,  c.  8,  p.  118.)  *  *  * 

"  If  a  nation,  during  war,  conducts  herself  contrary  to  the  law 
of  nations,  and  no  notice  is  taken  of  such  conduct  in  the  treaty  of 
peace,  it  is  thereby  so  far  considered  lawful,  as  never  afterwards  to 
be  revived,  or  to  be  a  subject  of  complaint.  *  *  * 

"  The  validity  of  such  a  law  (the  act  of  the  Virginia  legislature) 
would  not  be  questioned  in  the  Court  of  Chancery  of  Great  Britain  ; 
and  the  doctrine  seemed  strange  to  me  in  an  American  court  of 
justice."  (See  Lord  Chancellor  Thurlow  in  Wright  v.  J^utt,  1782,  IL 
Black.  Rep.,  p.  13.5,  149 ;  3  Term.  Rep.,  726.) 

[The  sixth  article  of  the  present  Constitution  of  the  L^nited  States. 
"  That  all  treaties  made  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land ;  and  tlir 
.judges  in  every  state  shall  be  bound  thereby,  anything  in  the  con- 
stitution, or  laws,  of  any  state  to  the  contrary  notwithstanding." 
was  held  to  have  a  retroactive  ettect,  and  to  be  considered  m  the  same 
light  as  if  the  Constitution  had  been  established  before  the  making 
of  the  treaty  of  1783 ;  and  that  Congress  was  competent  to  make  the 
fourth  article  of  the  said  treaty,  which  is  to  the  following  effect :  "  It 
is  agreed  tliat  creditors,  on  either  side,  shall  meet  with  no  lawful 
impediment  to  the  recovery  of  the  full  value,  in  sterling  money,  of  all 
honafide  debts,  heretofore  contracted."  And  further,  the  said  fourth 
article  of  the  treaty  annulled  the  act  of  confiscation  of  the  legislature 
of  Virginia,  and  the  payment  under  it.     And  on  that  ground  the 

"  Fourthly,  tliat  tlie  inquisition  takf^n  afterwards  did  not  relate  to  setup  tlii- 
forfeiture,  for  the  cause  was  but  tem])orary;  and  that  cause  being  removed  befort 
the  Kins's  title  was  foutid,  the  finding  after  should  not  relate." 


iJHAr.  II.]  BROWN   v.  THE   UNITED   STATES.  263 

jud^i^iiient  of  the  circuit  court  was  reversed;  and  judc^ment  on  the 
demurrer  for  phuntitt'  in  error  witli  costs  in  tlie  circuit  court,  and 
tlie  costs  of  the  appeal. 

Tlie  other  justices  expressed  tlieir  individual  opinions  in  tlie  case. 

Patteksox,  J.,  admitted,  that  in  strict  law,  debts  miglit  be  confis- 
cated, but  spoke  strongly  against  the  policy  of  doing  so. 

WiLsox,  J.,  thought  the  confiscation  of  debts  disreputable. 

CusnixG,  J.,  admitted  the  right  to  confiscate  debts,  but  thought  the 
fourth  article  of  the  treaty  annulled  the  statute  of  Virginia ;  and 
furtlier  that  the  state  ought  to  be  responsible  to  the  debtor  for  the 
amount  paid  into  the  loan  office. — F.  S.] 

BROWN  V.  THE  UNITED  STATES. 

Supreme  Court  op  tue  United  States,  1814. 

(8  Cmnch,  110.) 

There  is  no  difference  in  principle  between  the  confiscation  of  debts  due  to  the 
enemy  and  the  confiscation  of  tlie  property  of  the  enemy  found  in  the  country  at  the 
outbreak  of  war.  Held,  that  by  the  strict  law  of  war  both  may  be  confiscated ; 
but,  under  the  Constitution  of  the  United  States,  it  can  only  be  done  by  the  au- 
thority of  Congress. 

The  E))ndous,  owned  by  John  Delano  and  others,  citizens  of  the 
United  States,  was  chartered  to  a  company  carrying  on  trade  in 
Great  Britain,  one  of  whom  was  an  American  citizen,  for  the  purpose 
of  carrying  a  cargo  from  Savannah  to  Plymouth  (England).  After 
the  cargo  was  put  on  board,  the  vessel  was  stopped  in  port  by  the 
embargo  of  the  4th  of  April,  1812.  On  the  25th  of  the  same  month, 
it  was  agreed  between  the  master  of  the  ship  and  the  agent  of  the 
shippers,  that  she  should  proceed  with  her  cargo  to  New  Bedford, 
where  her  oMaiers  resided.  While  the  ship  was  lying  at  New  Bed- 
ford, war  was  declared  (18th  of  June);  and  in  October  or  Novem- 
ber the  cargo,  consisting  of  pine  timber,  staves,  and  laths,  was 
unloaded,  the  timber  being  put  in  a  salt-water  creek — not  navigable, 
and  on  the  7th  November  was  sold  by  the  agent  of  the  owners,  an 
American  citizen,  to  the  claimant,  Armitz  Brown,  who  was  also  an 
American  citizen.  On  the  19th  April,  ISLS,  aliliel  was  filed  by  the 
attorney  for  the  United  States  in  the  district  court  of  ^Massachusetts 
against  the  said  cargo,  as  well  on  behalf  of  the  United  States  as  for 
and  in  behalf  of  John  Delano,  and  for  all  others  concerned.  The 
attorney  had  no  instructions  fi-om  his  superior,  the  president  of  the 
United  States,  but  acted  at  the  instance  of  Delano,  the  owner  of  the 
JSmulous. 


264  EFFECTS    OF   WAR    AS    BETWEEN   ENEMIES.  [PAET  II. 

The  district  court  dismissed  tlie  libel.  The  circuit  court  (Story, 
Justice),  reversed  this  sentence,  and  condennied  the  pine  timber  as 
enemy's  property  forfeited  to  the  United  States.  The  claimant  ap- 
pealed to  the  supreme  court. 

Judgment,  by  Makshaix,  C.  J  : — 

"The  material  question  made  at  bar  is  this  :  can  the  pine  timber, 
even  admitting  the  property  not  to  be  changed  by  the  sale  in  No- 
vember, be  condemned  as  prize  of  war  ?  The  cargo  of  the  Emulous 
having  been  legiilly  ac(piired  and  put  on  board  the  vessel,  having 
been  detained  by  an  embargo  not  intended  to  act  on  foreign  property, 
the  vessel  having  sailed  before  the  war,  from  Savannah,  under  a 
stipulation  to  reland  the  cargo  in  some  port  of  the  United  States, 
the  re-landing  having  been  made  with  respect  to  the  residue  of  the 
cargo,  and  the  pine  timber  having  been  floated  into  shallow  water, 
where  it  was  secured  and  in  the  custody  of  the  owner  of  the  ship,  an 
American  citizen,  the  Court  cannot  perceive  any  solid  distinction, 
so  far  as  respects  confiscation,  between  this  property  and  other 
British  pro^oerty  found  on  land  at  the  commencement  of  hostilities. 
It  will  therefore  be  considered  as  a  question  relating  to  such  prop- 
erty generally,  and  to  be  governed  by  the  same  rule. 

"  Respecting  the  power  of  government  no  doubt  is  entertained. 
That  war  gives  to  the  sovereign  full  right  to  take  the  persons  and 
confiscate  the  property  of  the  enemy,  wherever  found,  is  conceded. 
The  mitigations  of  this  rigid  rule,  which  the  humane  and  wise  policy 
of  modern  times  has  introduced  into  practice,  will  more  or  less  affect 
the  exercise  of  this  right,  but  cannot  impair  the  right  itself.  That 
remains  undiminislied,  and  when  the  sovereign  authority  shall 
choose  to  bring  it  into  operation,  the  judicial  department  must  give 
effect  to  its  will.  But  until  that  will  shall  be  expressed,  no  power 
of  condemnation  can  exist  in  the  court. 

"  The  questions  to  be  decided  by  the  court  are : 

"  1st.  May  enemy's  property,  found  on  land  at  the  commencement 
of  hostilities,  be  seized  and  condemned  as  a  necessary  consequence 
of  the  declaration  of  war? 

"  2d.  Is  there  any  legislative  act  which  authorizes  such  seizure 
and  condemnation  ? 

"  Since,  in  this  country,  from  the  structure  of  our  government,  i)ro- 
ceedings  to  condemn  the  property  of  an  enemy  found  within  our 
territory  at  the  declaration  of  war,  can  be  sustained  only  upon  the 
principle  that  they  are  instituted  in  execution  of  some  existing  law, 
we  are  led  to  ask : 

"Is  the  declaration  of  war  such  a  law  ?    Does  that  declaration,  by 


CHAl".  ri.]  BROWN   V.   THE   UNITED   STATES.  265 

its  own  operation,  so  vest  the  property  of  the  enemy  in  the  g-ovcrn- 
nient,  as  to  su[)port  proceedings  for  its  seizure  and  confiscation,  or 
does  it  vest  only  a  right,  the  assertion  of  which  depends  on  the  will 
of  the  sovereign  power? 

"The  universal  practice  of  forbearing  to  seize  and  confiscate 
debts  and  credits,  the  principle  universally  received,  that  the  right 
to  them  revives  on  the  restoration  of  peace,  would  seem  to  prove 
that  war  is  not  an  absolute  confiscation  of  this  property,  but  sin)i)ly 
confers  the  right  of  confiscation. 

"  JJetween  debts  contracted  under  the  faith  of  laws,  and  property 
acquired  in  the  course  of  trade,  on  the  faith  of  the  same  laws,  reason 
draws  no  distinction ;  and,  although,  in  practice,  vessels  with  their 
cai-goes,  found  in  port  at  the  declaration  of  war,  may  have  been 
seized,  it  is  not  believed  that  modern  usage  would  sanction  the 
seizure  of  the  goods  of  an  enemy  on  land,  which  were  acquired  in 
peace  in  the  course  of  trade.  Such  a  proceeding  is  rare,  and  would 
be  deemed  a  harsh  exercise  of  the  right  of  war.  IJut  altliough 
the  practice  in  this  respect  may  not  be  uniform,  that  circumstance 
does  not  essentially  affect  the  question.  The  inquiry  is  whether 
such  property  vests  in  the  sovereign  by  the  mere  declaration  of 
war,  or  remains  subject  to  a  right  of  confiscation,  the  exercise  of 
which  depends  on  the  national  will :  and  the  rule  which  applies  to 
one  case  so  far  as  respects  the  operation  of  a  declaration  of  war  on 
tlie  thing  itself,  must  apply  to  all  others  over  which  war  gives  an 
equal  right.  The  right  of  a  sovereign  to  confiscate  debts  being 
precisely  the  same  with  the  right  to  confiscate  other  property  found 
in  the  country,  the  operation  of  a  declaration  of  war  on  debts  and 
on  other  property  found  in  the  country  must  be  the  same.  What, 
then,  is  this  operation  ? 

"  Even  Bynkershoek,  who  maintains  the  broad  principle,  that  in 
war  everything  done  against  an  enemy  is  lawful ;  that  he  may  be 
destroyed,  though  unarmed  and  defenceless  ;  that  fraud  or  even 
poison,  may  be  employed  against  him  ;  that  a  most  unlimited  right 
is  acquired  to  his  person  and  property ;  admits  that  war  does  not 
transfer  to  the  sovereign  a  debt  due  to  his  enemy  ;  and,  therefore, 
if  payment  of  such  debt  be  not  exacted,  peace  revives  the  former 
right  of  the  creditor;  'because,' he  says,  '  the  occupation  which  is 
had  by  war  consists  more  in  fact  than  in  law.'  He  adds  to  his 
observations  on  this  subject,  'let  it  not,  however,  be  supposed  that 
it  is  only  true  of  actions,  that  they  are  not  condennied  ipxojxir,  for 
other  things  also  belonging  to  the  enemy,  may  be  conceded  and 
escape  condenniation.' 

"  Vattel  says,  that  '  the  sovereign  can  neither  detain  the  persons 


•2G6  EFFECTS    OF   "VTAU    AS    BETWEEN    ENEMIES.       [PART  11. 

nor  the  property  of  thoje  subjects  of  the  enemy  who  ;ire  within  his 
dominions  at  the  time  of  the  declaration,' 

"It  is  true  that  this  rule  is,  in  terms,  applied  by  Vattel  to  the 
property  of  those  only  who  are  personally  within  the  territory  at 
the  commencement  of  hostilities ;  but  it  ai^plies  equally  to  things  in 
action  and  to  things  in  possession ;  and  if  war  did,  of  itself,  with- 
out any  further  exercise  of  the  sovereign  will,  vest  the  property  of 
the  enemy  in  the  sovereign,  his  presence  would  not  exempt  it  from 
this  operation  of  war.  Xor  can  a  reason  be  perceived  for  maintain- 
ing that  the  public  faith  is  more  entirely  pledged  for  the  security 
of  property  trusted  in  the  territory  of  the  nation  in  time  of  peace, 
if  it  be  accompanied  by  its  owner,  than  if  it  be  confided  to  the  care 
of  others. 

"  Chitty,  after  stating  the  general  right  of  seizure,  says,  '  but,  in 
strict  justice,  that  right  can  take  effect  only  on  those  possessions  of 
a  l)elligerent  which  have  come  to  the  hands  of  his  adversary  after 
the  declaration  of  hostilities.'     (P.  G7.) 

"  The  modern  rule,  then,  would  seem  to  be,  that  tangible  property 
belonging  to  an  enemy  and  found  in  the  country  at  the  commence- 
ment of  war,  ought  not  to  be  immediately  confiscated ;  and  in  almost 
every  commercial  treaty  an  article  is  inserted  stij^ulating  for  the 
right  to  withdraw  such  property. 

"  This  rule  seems  to  be  totally  incompatible  with  the  idea  that 
war  does  of  itself  vest  the  property  in  the  belligerent  government. 
It  may  be  considered  as  the  opinion  of  all  who  have  written  on  the 
jus  helli^  that  war  gives  the  right  to  confiscate,  but  does  not  itself 
confiscate  the  property  of  the  enemy ;  and  their  rules  go  to  the  ex- 
ercise of  this  right." 

Having  thus  decided  that  war  gives  the  right,  in  accordance  with 
international  law,  to  confiscate  enemy's  property'  in  the  situation  of 
this  cargo,  but  not  of  its  own  force,  the  court  next  proceeded  to  in- 
quire whether  the  Constitution  or  laws  of  the  United  States  had 
authorized  such  confiscation.  The  Constitution  confers  upon  Congress 
the  power  "  to  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water."  It  is  evident 
then  that  the  power  to  confiscate  is  vested  in  Congress,  and  that  it  is 
not  included  in  the  power  to  declare  war.  The  declaration  of  war, 
therefore,  did  not  authorize  confiscation ;  and  Congress  had  enacted 
no  other  law  to  that  effect. 

••  Xeither  is  it  admitted  that  tlie  executive,  in  executing  the  laws 
of  war,  may  seize  and  the  courts  condemn  all  property  which,  ac- 
cording to  the  modern  law  of  nations,  is  subject  to  condemnation. 
The  rule  is  in  its  nature  flexible.     It  is  subject  to  infinite  modi  flea- 


CHAP.  II.]  EX   PATITE   ROUSSMAKER.  267 

tions  ;  it  is  not  an  iniinntahle  rnle  of  law,  but  depends  on  political 
considerations  wliich  may  continually  vary.  It  is  a  question  rather 
of  policy  than  of  law;  and  like  all  other  questions  of  policy,  it  is 
j)roi)cr  for  the  consideration  of  a  department  which  can  modify  it  at 
will ;  not  for  the  consideration  of  a  department  whicli  can  pursue 
only  the  law  as  it  is  written.  It  is  proper  for  the  consideration  of 
the  legislature,  and  not  of  the  executive  or  judiciary. 

"  The  court  is  therefore  of  opinion  that  there  is  error  in  the  sen- 
tence of  condemnation  pronounced  in  the  circuit  court  in  this  case, 
and  doth  direct  that  the  same  be  reversed  and  annulled,  and  that 
the  sentence  of  the  district  court  be  affirmed." 

Mr.  Justice  Story  with  a  minority  of  the  court,  held  that,  the 
right  of  confiscation  existing,  it  was  within  the  power  of  the  execu- 
tive to  enforce  confiscation,  in  the  same  manner  that  the  executive 
established  blockades  and  autliorized  the  capture  of  the  enemy's 
property  at  sea,  and  contraband  goods. 


Ex  Parte  BOUSSMAKER. 
ChxVTvtcery,  1806. 
(13  Fesey  Jun.,  71.) 

Held,  that  property  of  an  enemy,  in  the  form  of  a  dividend  arising  from  a  con- 
tract made  before  tlie  war,  could  not  be  confiscated. 

This  was  a  petition  to  be  admitted  to  prove  a  debt  under  a  com- 
mission of  bankruptcy ;  which  the  commissioners  refused  to  admit, 
upon  the  objection  that  the  creditors  applying  to  prove  were  alien 
enemies. 

The  Lord  Chancellor,  Erskixe,  said :  "  If  this  had  been  a  debt 
arising  from  a  contract  with  an  alien  enemy,  it  could  not  possibly 
stand  ;  for  the  contract  would  be  void.  But,  if  the  two  nations  were 
at  peace  at  the  date  of  the  contract,  from  the  time  of  war  taking 
place  the  creditor  could  not  sue ;  but  the  contract  being  originally 
good,  upon  the  return  of  peace  the  right  would  revive.  It  woidd  be 
contrary  to  justice,  therefore,  to  confiscate  this  dividend.  Tliough 
the  right  to  recover  is  suspended,  that  is  no  reason  why  the  fund 
should  be  divided  among  the  other  creditors.  The  point  is  of  great 
moment,  from  the  analogy  to  the  case  of  an  action  ;  and  it  is  true,  a 
court  of  law  would  not  take  notice  of  the  objection  without  a  plea. 
It  must  appear  upon  the  record.  *  *  *  The  policy,  avoiding  con- 
tracts with  an  enemy  is  sound  and  wise;  but  when  the  contract 


268  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.  [PART  II. 

was  originally  good,  and  the  remedy  is  only  siispenderl,  the  proposi- 
tion, that  therefore  the  fund  should  be  lost,  is  very  dirt'erent. 
"  Let  the  claim  he  entered ;  and  the  dividend  reserved." 


WOLFF  V.  OXHOLM. 
King's  Bench,  1817. 

(6  Maule  and  Selwyn,  92.) 

nehl.  that  the  confiscation  of  private  debts  due  to  an  enemy  was  not  in  con- 
foruiity  with  the  usage  of  nations. 

Oxholm,  a  Danish  subject,  was  indebted,  February  7,  1800,  to  the 
firm  of  Wolff  &  Dorville,  English  subjects,  in  the  sum  of  £2,101  Is.  5(7. 
sterling  money,  for  which  a  suit  was  instituted  in  the  Danish  courts 
by  Wolff  &  Dorville  through  their  proctor,  resident  in  Denmark. 
The  defendant  set  up  certain  counter-claims  in  defense.  To  avoid 
this,  the  plaintiffs  in  1806  assigned  the  debt  to  a  Danish  sul)ject, 
who  should  sue  and  recover  in  his  own  name,  thtis  avoiding  some 
technicality  in  the  Danish  laws  which  affected,  the  case. 

The  defendant,  in  Sept.,  1806,  instituted  a  cross-suit.  In  1807, 
whilst  these  suits  were  pending,  a  war  broke  out  between  Great 
Britain  and  Denmark ;  and  an  ordinance  was  made  by  the  govern- 
ment of  Denmark,  August  16,  1807,  by  which  all  ships,  goods,  money, 
and  money's  worth,  of  or  belonging  to  English  subjects,  were  declared 
to  be  sequestrated  and  detained ;  and  by  another  law  or  ordinance 
of  the  Danish  government,  dated  Sept.  9, 1807,  all  persons  were  com- 
manded with  in  three  days  after  the  publication  thereof  (wherever 
it  was  not  then  already  done)  to  transmit  an  account  of  the  debts  due 
to  English  subjects,  of  whatsoever  nature  or  quality  they  might  be, 
the  whole  of  which  were  directed  to  be  joaid  into  the  Danish  treasury, 
and  in  case  of  concealment  the  person  so  offending  was  to  be  pro- 
ceeded against  by  the  officers  of  the  exchequer.  In  virtue  of  this 
law  and  ordinance,  commissioners  were  appointed  to  receive  the 
debts  declared  to  be  sequestrated :  and  as  a  consequence  of  the 
ordinance,  the  suit  of  ^lountford  (the  assignee  of  Wolff  &  Co.)  against 
the  defendant  was  not  further  prosecuted,  and  in  1807,  the  proctor 
gave  information  to  the  commissioners  of  the  debt.  The  commis- 
sioners authorized  such  payments  at  the  then  current  rate  of  exchange, 
six  Danish  dollars  to  the  pound,  sterling. 


riTAP.  TT.]  WOLFF    V.  OXHOLM.  269 

In  1812  the  defendant  paid  to  the  commissioners  the  amonnt  of  the 
debt  with  the  accrued  interest,  and  took  their  receipt  for  the  same ; 
upon  the  production  of  which,  the  court  quashed  the  cause  depending 
between  Monntford  and  the  defendant.  It  is  said  the  rate  of  ex- 
chant;-e  at  the  time  of  payment,  was  forty-five  to  fifty  dolkirs  to  tlie 
l)Ound  sterhng".  In  1814,  the  defendant  arrived  in  tliis  country  and 
was  arrested,  and  lield  to  bail  by  tlie  plaintiffs  for  the  debt. 

Judgment  of  Ellexbokol-gu,  C.  J. :— This  judgment  is  a  long  and 
elabi^rate  discussion,  in  which  the  c»pinions  of  Grotius,  Puffendorf, 
Vattel,  and  some  older  authorities  are  analyzed  ;  and  the  conclusion 
reaebeil,  that  the  practice  of  Europe  in  refraining  from  the  confiscation 
of  debts  had  become  so  general  that  confiscation  must  be  considered 
as  a  violation  of  the  public  faith.  It  is  admitted  that  Bynkei'shoek 
mentions  several  cases  of  confiscation  in  the  10th  and  17th  centuries 
which  that  writer  considered  as  warranted  by  the  law  of  nations. 
A  similar  case  is  cited  as  decided  by  a  court  at  Paris  in  the  middle 
of  the  16th  century.  Moreover,  Sir  Matthew  Hale  is  quoted  as  say- 
ing "that  by  the  law  of  England  debts  and  goods  found  in  the  realm 
belonging  to  alien  enemies  belong  to  the  King,  and  may  be  seized  by 
him."  But,  say  the  court,  the  books  referred  to  do  not  furnish  an 
instance  of  the  seizure  of  debts,  or  a  decided  case  in  support  of  the 
legality  of  such  a  seizure.  Magna  Charta,  Cap.  30,  is  referred  to  in 
support  of  the  position  of  the  court. 

And  finally,  in  the  midst  of  all  the  extraordinary  violence  of  our 
owni  times,  say  the  court,  "  this  ordinance  of  the  court  of  Denmark 
stands  single  and  alone,  not  supported  by  any  precedent,  nor  adopted 
as  an  example  in  any  other  state."  Xot  being  therefore  conformable 
to  the  usage  of  nations,  the  quashing  of  the  suit  of  the  plaintiffs 
thereunder  could  form  no  bar  to  the  present  suit. 

"  Postea  to  the  plaintitt's."  ^ 

1  This  decision  is  directly  at  variance  with  the  American  cases  above  quoted. 
SirRoBKKT  PuiLLiMOHE  (International  Law,  IIL  T2o)  in  reviewing  this  judirmont, 
shows  tliat  the  inferences  from  the  language  of  Vattel,  Grotius.  and  PulTendorf 
were  not  warranted  ;  while  the  authority  of  Bynkershoek  and  the  Dutch  tribunals 
was  hardly  touched  upon.  That,  moreover,  to  the  high  authority  of  Story  and  the 
American  tribunals  no  allusion  appears  to  have  been  made  by  counsel  or  judge. 
"Perhaps,"'  he  continues,  "if  the  occasion  should  present  itself,  the  decision  of 
Lord  Ellenborough  might  be  reversed  in  England.  It  was  the  decision  of  a  single 
court  not  much  accustomed  to  deal  with  questions  of  international  law."' 

The  provocation  for  the  act  of  the  Danish  government  was  very  great.  An  English 
squadron  had  taken  violent  possession  of  the  Danish  fleet  in  time  of  peace  between 
the  two  countries  (1807)  ;  and  at  the  breaking  out  of  war  in  consequence  of  this 
act,  the  English  government  had  confiscated  all  the  Danish  ships  found  in  English 
ports  as  droits  of  admiralty. 


270  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.       [PART  IL 


Section  30. — Private  Contracts. 


HANGER  V.  ABBOTT. 

Supreme  Court  of  the  United  States,  1867. 
(6  Wallace,  532.) 

Held,  that,  in  the  case  of  contract  debts,  as  between  persons  ■who  become  en- 
emies, the  remedy  is  suspended  during  the  period  of  the  war,  and  revives  on  the 
return  of  peace.  In  such  case,  the  statute  of  limitations  does  not  run  during  the 
war. 

Error  to  the  Circuit  Court  for  the  Eastern  District  of  Arkansas. 
.J.  &  E.  Abbott,  of  Xew  Hampshire,  sued  Hanger,  of  Arkansas,  in 
assumpsit.     The  latter  pleaded  the  statute  of  limitations  of  Arkan- 

In  the  caseof  tlie  Johanna  EmiUe,  Spinks"  Prize  Cases,  14  (1854),  Dr.  Lusiiingto.v 
said,  "  If  the  property  was  on  laud,  according  to  the  ancient  law,  it  was  also  seizable; 
and  certainly  during  the  American  war  there  were  not  wanting  instances  in  which 
such  property  was  seized  and  condemned  by  law, — not  by  the  authority  of  this 
court,  but  of  another.  That  rigor  was  afterwards  relaxed.  I  believe  no  such  in- 
stance has  occurred  from  the  time  of  the  American  war  to  the  present  day — no  in- 
stance in  which  property  inland  was  subject  to  search  or  seizure,  but  no  doubt  it 
•would  be  competent  to  the  authority  of  the  crown  if  it  thought  fit." 

During  the  civil  war  in  the  United  States  (1801),  the  Congress  of  the  Confederate 
States  confiscated  by  act  of  Concress  all  property,  movable  or  immovable,  and  all 
rights,  credits,  and  interests  held  within  the  Confederacy  by  or  for  any  alien  enemy, 
except  public  stocks  and  securities.  And  all  persons  domiciled  within  the  enemy's 
country  were  held  to  be  subject  to  the  provisions  of  the  act.  (Act  of  August  0th, 
1801.     McPherson,  History  of  the  Rebellion,  203.) 

It  would  seem  to  be  clear  that,  by  the  strict  law,  tangible  property  and  debts 
are  still  subject  to  confiscation  by  a  belligerent.  But  it  is  equally  clear  that  the 
entire  drift  of  modern  opinion  and  practice  is  opposed  to  the  exercise  of  that  right. 
In  the  case  of  Ilnu'/er  v.  Abbott,  1807,  the  Supreme  Court  of  the  United  States 
said  '*in  strictness  it  (the  right  of  confiscating  sucli  debts)  may  still  be  said  to  exist, 
but  it  may  well  be  considered  as  a  naked  and  impolitic  right,  condemned  by  the  en- 
lightened conscience  of  modern  times." 

On  the  other  band,  property  of  the  enemy  found  afloat  in  ports  at  the  outbreak 
of  war,  as  ships  with  their  cargoes,  has  generally  in  the  absence  of  a  contrary 
agreement,  been  confiscated,  following  the  rules  still  in  practice  in  respect  of  private 
property  of  the  enemy  at  sea.  In  lirown  v.  TIte  United  States,  the  Supreme  Court 
was  careful  to  exclude  from  the  rule  of  the  decision  property  found  afloat  in  ports. 
But  here,  too,  there  are  strong  indications  of  a  milder  rule,  if  indeed  it  is  not  already 
pretty  firmly  established. 


CITAP.  n.]  HANGER   V.  ABBOTT.  271 

sas,  Avhich  limits  such  action  to  three  years.  The  former  replied  the 
rebellion,  which  broke  out  after  the  cause  of  action  accrued,  and 
closed  for  more  than  three  years  all  lawful  courts.  On  dennirrer, 
and  jnd,!]^ment  ae:ainst  it,  and  eiTor  to  tliis  court,  the  question  here 
Mas,  simply,  whether  the  time  during  which  the  courts  in  Arkansas 
■were  closed  on  account  of  the  rebellion,  was  to  be  excluded  from  the 
computation  of  time  fixed  by  the  Arkansas  statute  of  limitations 
within  which  suits  on  contracts  were  to  be  brouglit,  there  being  no 
exception  by  the  terms  of  the  statute  itself  for  any  such  case. 

Extracts  from  the  opinion  of  the  court,  delivered  by  Mr.  Justice 

ClJFFORD  : — 

"  Proclamation  of  blockade  was  made  by  the  President  on  the 
nineteenth  day  of  April,  1861,  and,  on  the  thirteenth  day  of  July,  in 
the  same  year.  Congress  passed  a  law  authorizing  the  President  to 
interdict  all  trade  and  intercourse  between  the  inhabitants  of  the 
States  in  insurrection  and  the  rest  of  the  United  States.  12  Stat,  at 
Large. 

"  War,  when  duly  declared  or  recognized  as  such  by  the  war-mak- 
mg  power,  imports  a  prohibition  to  the  subjects,  or  citizens,  of  all 
commercial  intercourse  and  correspondence  with  citizens  or  persons 
domiciled  in  the  enemy's  country.  Upon  this  principle  of  puljlic  law- 
it  is  the  established  rule  m  all  commercial  nations,  that  trading  with 
the  enemy,  except  under  a  government  license,  subjects  the  property 
to  confiscation,  or  to  capture  and  condemnation. 

"Partnership  with  a  foreigner  is  dissolved  by  the  same  event 
■uhich  makes  him  an  alien  enemy,  because  there  is  in  that  case  an 
utter  incompatibility  created  by  operation  of  law  between  the  part- 
ners as  to  their  respective  rights,  duties,  and  obligations,  both  public 
and  private,  Avhich  necessarily  dissolves  the  relation,  independent  of 
the  will  or  acts  of  the  parties.  Direct  consequence  of  the  rule  as 
established  in  those  cases  is,  that  as  soon  as  war  is  commenced  all 
trading,  negotiation,  communication,  nnd  intercourse  between  the 
citizens  of  one  of  the  belligerents  with  those  of  the  other,  without 
the  permission  of  the  government,  is  unlawful.  Xo  valid  contract, 
therefore,  can  be  made,  nor  can  anj"-  promise  arise  by  implication  of 
law,  from  any  transaction  with  an  enemy.  Exceptions  to  the  rule 
are  not  admitted ;  and  even  after  the  war  has  terminated,  the  de- 
fendant, in  an  action  founded  upon  a  contract  made  in  violation  of 
that  prohibition,  may  set  up  the  illegality  of  the  transaction  as  a 
defence.  *  *  * 

" Executory  contracts  also  with  an  alien  enemy,  or  even  with  a 
neutral,  if  they  cannot  be  performed  except  in  the  way  of  commercial 
intercourse  with  the  enemy,  are  dissolved  by  the  declaration  of  war. 


272  EFFECTS    OF    WAR    AS    BETWEEN    ENEINHES.         [rART  11. 

which  operates  for  that  puri^ose  with  a  force  equivalent  to  an  act  of 
Congress.     ExposUo  v.  Boicden,  4  Ellis  &,  Blackburne,  963. 

"In  former  times  the  right  to  confiscate  debts  was  admitted  as  an 
acknowledged  doctrine  of  the  law  of  nations,  and  in  strictness  it 
may  still  be  said  to  exist,  but  it  may  well  be  considered  as  a  naked 
and  impolitic  right,  condemned  by  the  enlightened  conscience  and 
judgment  of  modern  times.  Better  opinion  is  that  executed  con- 
tracts, such  as  the  debt  in  this  case,  although  existing  prior  to  the 
war,  are  not  annulled  or  extinguished,  but  the  remedy  is  only  sus- 
pended, wliicli  is  a  necessary  conclusion,  on  account  of  the  inability 
of  an  alien  enemy  to  .sue  or  to  sustain,  in  tho  language  of  the  civil- 
ians, a  persona  standi  in  judicio.     Fli)U  v.  Waters^  15  East.,  260. 

"  Trading,  which  supposes  the  making  of  contracts,  and  which  also 
involves  the  necessity  of  intercourse  and  correspondence,  is  neces- 
sarily contradictory  to  a  state  of  war,  but  there  is  no  exigency  in 
war  which  requires  that  belligerents  should  confiscate  or  annul  the 
debts  due  by  the  citizens  of  the  other  contending  party.  *  *  * 

"  Under  the  thirty-fourth  section  of  the  Judiciary  Act,  the  statutes 
of  limitations  of  the  several  States,  where  no  special  provision  has 
been  made  by  Congress,  form  the  rule  of  decision  in  the  courts  of  the 
United  States,  and  the  same  effect  is  given  to  them  as  is  given  in 
the  courts  of  the  State.  *  *  * 

"  When  our  ancestors  immigrated  here,  they  brought  with  them 
the  statute  of  21  Jac.  1,  c.  16,  entitled  'An  act  for  limitation  of  ac- 
tions, and  for  avoiding  of  suits  in  law^,'  known  as  the  statute  of 
limitations.  *  *  * 

"  Persons  within  the  age  of  twenty-one  j^ears,  fences  covert,  non 
compos  mentis,  persons  imprisoned  or  beyond  the  seas,  were  excepted 
out  of  the  operation  of  the  third  section  of  the  act,  and  w^ere  allowed 
the  same  period  of  time  after  such  disability  was  removed.  Just 
exceptions  indeed  are  to  be  found  in  all  such  statutes,  but  -when  ex- 
amined it  will  appear  that  they  were  framed  to  prevent  injustice  and 
never  to  encourage  laches  or  to  promote  negligence.  Cases  where 
the  courts  of  justice  are  closed  m  consequence  of  insurrection  or 
rebellion  are  not  within  the  express  terms  of  any  such  exception,  but 
tlie  statute  of  limitations  was  passed  in  1623,  more  than  a  century 
before  it  came  to  be  understood  that  debts  due  to  alien  enemies  were 
not  subject  to  confiscation.  Down  to  1737,  says  Chancellor  Kext, 
the  opinion  of  jurists  was  in  favor  of  the  right  to  confiscate,  and 
many  maintained  that  such  debts  were  annulled  by  the  declaration 
of  war.  Regarding  such  debts  as  annulled  by  war,  the  law-makers 
of  that  day  never  thought  of  making  provision  for  the  collection  of 
the  same  on  the  restoration  of  peace  between  the  belligerents.    Com- 


CHAP.  II.]  HANGER    V.  ABBOTT.  273 

nierco  and  t'ivilizatioii  have  Avr()u.<>-ht  great  changes  in  tlie  spirit  of 
nations  touching-  the  conduct  of  war,  and  in  respect  to  tlie  princii)les 
of  international  hiw  a[)phcable  to  the  subject. 

"Constant  usage  and  practice  of  belUgerent  nations  from  tlie  ear- 
liest times  subjected  enemy's  goods  in  neutral  vessels  to  capture  and 
condeuniation  as  prize  of  war,  but  the  maxim  is  now  universally  ac- 
knowledged that  'free  ships  make  free  goods'  which  is  another 
victory  of  commerce  over  the  feelings  of  avarice  and  revenge.  Indi- 
vidual debts,  as  a  general  remark,  are  no  longer  the  subject  of  con- 
liscation,  and  the  rule  is  universally  admitted  that  if  not  confiscated 
daring  the  war,  the  return  of  peace  brings  with  it  both  'the  right 
and  the  remedy.'      Wolfv.  Oxkohn,  6  Maule&  Selvvyn,  92.  *  *  * 

"  Old  decisions,  made  when  the  rule  of  law  was  that  war  amuilled 
all  debts  between  the  subjects  of  the  belligerents,  are  entitled  to  but 
little  weight,  even  if  it  is  safe  to  assume  that  they  are  correctly 
reported,  of  which,  in  respect  to  the  leading  case  of  PHdeauj-  v.  Wtbbei\ 
1  Levinz,  31,  tliere  is  much  doubt.  Miller  v.  Prideaux.,  1  Keble,  157  ; 
Lee  V.  Rogers,  1  Levinz,  110  ;  1I<iIIy.  Wi/hourne,  2  Salked.,  420 ;  Aubrey 
V.  Fortescue,  10  Modern,  205,  are  of  the  same  class,  and  to  the  same 
effect.  All  of  those  decisions  were  made  between  parties  who  were 
citizens  of  the  same  jurisdiction,  and  inost  of  them  were  made  nearly 
a  hundred  years  before  the  international  rule  was  acknowledged,  that 
war  only  suspended  debts  due  to  an  enemy,  and  that  peace  had  the 
effect  to  restore  the  remedy.  The  rule  of  the  present  day  is,  that 
debts  existing  prior  to  the  war,  but  which  made  no  part  of  the 
reasons  for  undertaking  it,  remain  entire,  and  the  remedies  are 
revived  with  the  restoration  of  peace.  *  *  * 

"  Text  writers  usually  say,  on  the  authority  of  the  old  cases  re- 
ferred to,  that  the  non-existence  of  courts,  or  their  being  shut,  is  no 
answer  to  the  bar  of  the  statute  of  limitations,  but  Plowden  says 
that  things  happening  by  an  invincible  necessity,  though  they  be 
against  common  law,  or  an  act  of  Parliament,  shall  not  be  prejudicial, 
that,  therefore,  to  say  that  the  courts  were  shut,  is  a  good  excuse  on 
voucher  of  record.  Exceptions  not  mentioned  in  the  statutes  have 
sometimes  been  admitted,  and  this  court  held  that  the  time  which 
elapsed  while  certain  prior  proceedings  were  suspended  by  appeal, 
should  be  deducted,  as  it  appeared  that  the  injured  party  in  the 
meantime  had  no  right  to  demand  his  money,  or  to  sue  for  the  recov- 
ery t)f  the  same ;  and  in  view  of  those  circumstances,  the  court  de- 
cided that  his  right  of  action  had  not  accrued  so  as  to  bar  it,  although 
not  commenced  within  six  years.  Montg ornery  v.  Hernandez,  12 
Wheaton,  129. 

"  But  the  exception  set  up  in  this  case  stands  upon  much  more  solid 
18 


274  EFFECTS   OF   WAR    AS    BETWEEX   ENEMIES.  [PAET  II. 

reasons,  as  the  riglit  to  sue  was  suspended  by  the  acts  of  the  govern- 
ment, for  which  all  the  citizens  are  responsible.  Unless  the  rule  be 
so,  then  the  citizens  of  a  state  may  pay  their  debts  by  entering  into 
an  insurrection  or  rebellion  against  the  government  of  the  Union,  if 
they  are  able  to  close  the  courts,  and  to  successfully  resist  the  laws, 
until  the  bar  of  the  statute  becomes  complete,  which  cannot  for  a 
moment  be  admitted.  Peace  restores  the  right  and  the  remedy,  and 
as  that  cannot  be  if  the  limitation  continues  to  run  during  the  period 
the  creditor  is  rendered  incapable  to  sue,  it  necessarily  follows  that 
the  operation  of  the  statute  is  also  suspended  during  the  same  period. 
"Judgment  affirmed  with  costs.  "  ^ 


GRISWOLD  V.  WADDIXGTON. 

Court  of  Appeals  of  Xew  York,  1818. 
(15  JoJtnson''s  lieports,  57.) 

Held,  that  commercial  partnerships  existing  between  citizens  of  two  States  are 
dissolved  by  the  breaking  out  of  war  between  those  States. 

And,  that  the  deekiration  of  war  itself  furnishes  the  necessary  legal  notice  of 
such  dissohition. 

Before  the  breaking  out  of  the  war  between  the  United  States  and 
England,  in  1812,  Joshua  Waddington,  an  American  citizen  residing 
in  Xew  York,  and  Henry  Waddington,  a  British  subject  residing  in 
London,  were  partners  in  a  commercial  l)usiness.  During  the  wai-, 
N.  L.  and  G.  Griswold  had  transactions  Avith  J.  Waddington,  in  tlic 
United  States.  After  the  close  of  the  war,  the  Griswolds  sued  to 
recover  a  balance  of  account  arising  out  of  those  transactions ;  and 
their  contention  was  that  II.  Waddington,  the  London  partner,  was 
liable  for  the  debt. 

Judgment,  by  Spexcer,  J. : — 

"  It  appears  to  me,  that  the  declaration  of  war  did,  of  itself  work 
a  dissolution  of  all  commercial  partnerships  existing  at  the  time  be- 
tween British  subjects  and  American  citizens. 

"By  dealing  with  either  party,  no  third  person  could  acquire  a 
legal  right  against  the  other,  because  one  alien  enemy  cannot,  in  that 
capacity,  make  a  private  contract  binding  upon  the  other.  This  con- 
clusion would  seem  to  be  an  inevitable  result  from  the  new  relations 

^  See  also  Semmen  v.  Hartford  Ins.  Co.,  13  Wallace,  160  ;  and  Broicn  v.  Hlatts, 
15  Chil.,  177.  That  interest  does  not  run  during  the  war,  see  Brov:n  v.  Hiattts,  15 
Wallace,  177. 


CHAr.  II.]  GRISWOLD    V.  WADDINGTON. 


07-. 


created  by  the  war.  It  is  a  necessary  consequence  of  the  other  prop- 
osition, tliat  it  is  unlawful  to  have  communication  or  trade  witli  an 
enemy.  To  suppose  a  commercial  partnersliip  (such  as  this  was)  to 
V)c  continued,  and  recognized  l)y  law  as  subsisting,  wlien  the  same  law 
had  severed  the  subjects  of  the  two  countries,  and  declared  them 
enemies  to  each  other,  is  to  suppose  the  law  chargeable  with  incon- 
sistency and  absurdity.  For  what  use  or  purpose  could  the  law 
uphold  such  a  comiection,  when  all  further  intercourse,  connnunica- 
tion,  negotiation,  or  dealing  between  the  partners,  was  prohibited,  as 
unlawful?  Why  preserve  the  skeleton  of  the  firm,  when  the  sense 
and  spirit  of  it  has  fled,  and  when  the  execution  of  any  one  article  of 
it  by  either,  would  be  a  breach  of  his  allegiance  to  his  country  ?  In 
short,  it  must  be  obvious  to  every  one,  that  a  state  of  war  creates 
disabilities,  imposes  restraints,  and  exacts  duties  altogether  incon- 
sistent with  the  continuance  of  that  relation.  Why  does  war  dissolve 
a  charter-party,  or  a  commercial  contract  for  a  particular  voyage? 
Because,  says  V'alin,  (tom.  1  p.  626,)  the  war  imposes  an  insurmount- 
able obstacle  to  the  accomplishment  of  the  contract ;  and  this  obsta- 
cle arising  from  a  cause  beyond  the  control  of  the  party,  it  is  very 
natural,  he  observes,  that  the  charter-party  should  be  dissolved,  as 
of  course.  Why  should  the  contract  of  partnership  contiiuie  by  law 
when  equally  invincible  ol)stacles  are  created  by  law  to  defeat  it  ?  If 
one  alien  enemy  can  go  and  bind  his  hostile  partner,  by  contracts  in 
time  of  war,  when  the  other  can  have  no  agency,  consultation,  or  con- 
trol concerning  them,  the  law  would  be  as  unjust  as  it  would  he 
extravagant.  The  good  sense  of  the  thing  as  applicable  to  this  sub- 
ject, is  the  rule  prescribed  by  the  Roman  law,  that  a  copartnership 
in  any  business  ceased  when  there  was  an  end  put  to  the  business 
itself.  Jtem  si  aUcKJus  rei  societas  sit,  et  finis  negotio  impositus  est, 
flirdtur  societas.     (Inst.  3,  26,  6.) 

"  The  doctrine,  that  war  does  not  interfere  with  private  contracts, 
is  not  to  be  carried  to  an  extent  inconsistent  with  the  rights  of  war. 

"  Suppose  that  11.  &  J.  W.  had  entered  into  a  contract  before  the 
war,  which  was  to  continue  until  1814,  by  which  one  of  them  was  to 
ship,  half  yearly,  to  London,  consigned  to  the  other,  a  cargo  of  pro- 
visions, and  the  other,  in  return,  to  ship  to  Xew  York  a  cargo  of 
goods.  The  war  which  broke  out  in  1812,  would  surely  have  put  an 
end  to  the  further  operation  of  this  contract,  lawful  and  innocent  as 
it  was  when  made.  Xo  person  could  raise  a  doubt  on  this  point ; 
and  what  sanctity  or  magic  is  there  in  a  contract  of  copartnership, 
that  it  must  not  yield  to  the  same  power  ? 

"  If  we  examine,  more  particularly,  the  nature  and  objects  of  com- 
mercial partnerships,  it  would  seem  to  be  contrary  to  all  the  rules 


276  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.  [PAUT  II. 

by  which  they  are  to  be  construed  and  governed,  that  they  should 
contmue  to  exist,  after  the  parties  are  interdicted  by  the  govern- 
ment, from  any  communication  witli  eacli  otlier,  and  are  placed  in  a 
state  of  absolute  hostility.  It  is  of  the  essence  of  the  contract  that 
each  party  should  contribute  something  valuable,  as  money,  or 
goods,  or  skill  and  labor  on  joint  account,  and  for  the  common 
l)enefit;  and  that  the  object  of  the  partnershij)  should  be  lawful, 
and  honest  business. 

"  But  how  can  the  partners  have  any  unitj'  of  interest,  or  any 
joint  object  that  is  lawful,  when  their  pursuits,  in  consequence  of 
the  war,  and  in  consequence  of  the  separate  allegiance  which  each 
owes  to  his  own  government,  nnist  be  nuitually  hostile? 

"The  commereial  business  of  each  countr}-,  and  of  all  its  people, 
is  an  object  of  attack,  and  of  destruction  to  the  other.  One  party 
maybe  engaged  in  privateering,  or  in  supplying  the  fleets  and  armies 
of  his  country  with  provisions,  or  with  munitions  of  war  ;  and  can 
the  law  recognize  the  other  partner  as  having  a  joint  interest  in  the 
profits  of  such  business?  It  would  be  impossible  for  the  one  partner 
to  be  concerned  in.  any  commercial  business,  which  was  not  auxiliary 
to  the  resources  and  efforts  of  his  country  in  a  maritime  war.  And 
shall  the  other  partner  be  lawfully  drawing  a  revenue  from  such 
employment  of  capital,  and  such  personal  services  directed  against 
liis  own  country  ?  "We  cannot  contemplate  such  a  confusion  of  oljli- 
gation  between  the  law  of  partnership  and  the  law  of  war,  or  such  a 
conflict  between  his  interest  as  a  partner,  and  his  duty  as  a  i)atriot, 
without  a  mixture  of  astonishment  and  dread.  Sliall  it  be  said  that 
tlie  partnership  must  l)e  deemed  to  be  al)ridged  during  war,  to  busi- 
ness that  is  altogetlier  innoxious  and  harmless? 

"  But  I  would  ask,  how  can  we  cut  down  a  partnership  in  that 
manner,  without  destroying  it  ?  The  veiw  object  of  tiie  partnership, 
in  this  case,  was,  no  doubt,  commercial  business  between  England 
and  the  United  States,  and  which  the  hostile  state  of  the  two  coun- 
tries interdicted;  or  it  may  have  been  business  in  wliifh  the  personal 
comnuniication  and  advice  of  each  partner  was  deemed  essential,  and 
without  which  the  partnership  would  not  have  been  formed.  It  is 
one  of  the  principles  of  the  law  of  partnership,  that  it  is  dissolved 
l)y  the  death  of  anyone  of  its  members,  however  numerous  the  asso- 
ciation may  be;  and  the  reason  is  this;  the  personal  qualities  of 
each  partner  enter  into  the  consideration  of  the  contract,  and  the 
survivors  ought  not  to  be  held  bound  without  a  new  assent,  when 
l)erhaps,  the  character  of  the  deceased  partner  was  the  inducement 
to  the  connection. 

"  Shall  we  say  that  the  partnership  continues  during  war,  in  a 


(•IIAP.  II.]  GRISWOLD    V.  AVADDINGTOX.  277 

(|uiescent  state,  and  that  the  hostile  pai'tiiers  (h>  not  share  in  each 
other's  profits,  made  in  carrying  on  tlie  liostile  coninierce  of  eacli 
country  ? 

"It  would  l)e  then  most  unjust  to  make  the  party  who  did  not 
share  in  profit  to  share  in  loss,  and  to  be  bound  by  the  other's  con- 
tracts ;  but  if  one  partner  does  not  share  in  profit,  that  alone  de- 
stroys a  partnership.  It  would  be  what  the  Roman  lawyers  called 
Societas  leonina.,  in  allusion  to  the  fable  of  the  lion,  who,  having 
entered  into  a  partnership  with  the  other  animals  of  the  forest  in 
hunting,  appropriated  to  himself  all  the  prey. 

"  It  is  one  of  the  fundamental  principles  of  every  connnercial 
partnership,  that  each  partner  has  the  power  to  buy  and  sell  and 
pay  and  receive,  and  to  contract  and  bind  the  firm.  But  tlien,  again, 
as  a  necessary  check  to  this  power,  each  partner  can  interfere  and 
stop  any  contract  about  to  be  made  by  any  one  of  the  rest.  This 
is  an  elementary  rule,  derived  from  the  civil  law.  In  re  pari 
potiorem  causcun  esse  jjrohiOentis  constat.  (Pothier,  Trait,  du  Cent, 
sec.  n.  90.) 

"  But  if  the  partnership  continues  in  w^ar  between  liostile  asso- 
ciates, this  salutary  power  is  withdrawn,  and  each  partner  is  left 
defenceless.  If  the  law  continues  the  connection,  after  it  has  de- 
stroyed the  check,  the  law  is  then  cruel  and  unjust. 

"In  speaking  of  the  dissolution  of  partnerships,  the  French  and 
civil  law  writers  say,  that  partnerships  are  dissolved  by  a  change  of 
the  condition  of  one  of  the  parties  which  disables  him  to  perform  his 
part  of  the  duty,  as  by  a  loss  of  liberty,  or  banishment,  or  bank- 
ruptcy, or  a  judicial  prohibition  to  execute  his  business,  or  by  confis- 
cation of  his  goods. 

"  The  English  law  of  partnership  is  derived  from  the  same  source  ; 
and  as  the  cases  arise,  the  same  principles  are  applied.  The  princi- 
ple here  is,  that  when  one  of  the  parties  becomes  disabled  to  act, 
or  when  the  business  of  the  association  becomes  impracticable,  the 
law,  as  well  as  common  reason,  adjudges  the  partnership  to  be  dis- 
solved. *  *  * 

"Another  objection  was  raised,  from  the  want  of  notice  of  the 
dissolution  of  the  partnership.  The  answer  to  this  is  extremely 
easy,  and  perfectly  conclusive.  Notice  is  requisite  when  a  partner- 
ship is  dissolved  by  the  act  of  the  parties,  but  it  is  not  necessary 
when  the  dissolution  takes  place,  by  the  act  of  the  laws.  The 
declaration  of  war,  from  the  time  it  was  duly  made  known  to  the 
nations,  put  an  end  to  all  future  dealings  between  the  sul)jects  and 
citizens  of  the  two  countries,  and,  consequently,  to  the  future  opera- 
tion of  the  copartnership  in  question. 


278  EFFECTS    OF    AVAU    AS    BETWEEN    ENEMIES.  [PAKT  H. 

"The  declaration  of  w;ir  was,  of  itself,  the  most  authentic  and 
monitor}'  notice.  Any  other  notice,  in  a  case  like  this,  between  two 
public  enemies,  wlio  had  each  his  domicil  in  his  own  countrj^  would 
have  been  useless.  All  mankind  were  bound  to  take  notice,  of  the 
war,  and  of  its  consequence.  The  notice,  if  given,  could  only  be 
given  by  each  partner  in  his  own  country ;  and  there  it  would  be 
useless,  as  his  countrymen  could  not  hold  any  lawful  intercourse 
Avith  the  enemy.  It  could  not  be  given  as  a  joint  act,  for  the 
pai'tners  cannot  lawfully  commune  together. 

"  But,  it  was  said,  that  the  peace  had  a  healing  influence,  and 
restored  the  parties  to  all  their  rights,  and  arrested  all  confiscations, 
and  forfeitures,  which  had  not  previously  and  duly  attached.  I  do 
not  know  that  I  differ  from  the  counsel  in  any  just  application  of 
this  doctrine. 

"  As  far  as  the  war  suspended  the  right  of  action  existing  in  the 
adverse  party  prior  to  the  war,  that  right  revived  ;  but  if  the  contract 
in  this  case  was  unlawful,  peace  could  not  revive  it,  for  it  never  had 
any  legal  existence.  So,  too,  the  copartnership  being  once  dissolved 
by  the  war,  it  was  extinguished  forever,  except  as  to  matters  exist- 
ing prior  to  the  war." 


NEW  YORK  LIFE  IXS.  CO.  v.  STATHEM. 

SAME  v.  SEYMS. 

MANHATTAN  LIFE  INS.  CO.  v.  BUCK,  Executor. 

SuPEEiiE  Court  of  the  L^xited  States,  1876. 

(  03  United  States  Bejwrts,  24.) 

Executon-  contracts  between  persons  who  become  enemies,  where  time  is  ma- 
terial and  of  the  essence  of  the  contract,  are  annulled  by  the  war. 

Life  insm^ance  policies  are  of  this  character  ;  but  the  assured  is  entitled  to 
recover  the  equitable  value  of  the  policy,  at  the  time  of  the  outbreak  of  the  war. 

The  first  of  these  cases  is  here  on  appeal  from,  and  the  second 
and  third  on  writs  of  error  to,  the  Circuit  Court  of  the  L'nited 
States  for  the  Southern  District  of  Mississippi. 

The  first  case  is  a  bill  in  equity,  filed  to  recover  the  amount  of  a 
policy  of  life  assurance,  granted  by  the  defendant  (now  ap[)ellant) 
in  isol,  on  tlie  life  of  Dr.  A.  D.  Stathem,  of  Mississippi,  fi'om  the 
proceeds  of  certain  funds  belonging  to  the  defendant  attached  in 


CHAP.  II.]  NEW    YORK    LIFE   INS.    CO.    V.    STATHEM.  279 

the  hands  of  its  agent  at  Jackson,  in  that  State.  It  appears  from 
the  statements  of  the  hill  that  the  animal  premiums  accruing  on  the 
l)olicy  were  all  regularly  [)aid,  until  the  hreaking  out  of  the  late 
eivil  war,  but  that,  in  consequence  of  that  event,  the  premium  due 
on  the  8th  of  December,  18G1,  was  not  paid  ;  the  parties  assured 
being  residents  of  Mississippi,  and  the  defendant  a  corporation  of 
New  York.     Dr.  Stathem  died  in  July,  1862. 

The  other  cases  are  similar. 

Each  policy  contained  various  conditions,  upon  the  breach  of 
which  it  was  to  be  null  and  void ;  and  amongst  others  the  following : 
"  That  in  case  the  said  (assured)  shall  not  pay  the  said  premium  on 
or  before  the  several  days  hereinbefore  mentioned  for  the  payment 
thereof,  then  and  in  every  such  case  the  said  company  shall  not  be 
liable  to  the  payment  of  the  sum  insured,  or  in  an}^  part  thereof, 
and  this  policy  shall  cease  and  determine." 

The  Manhattan  policy  contained  the  additional  provision,  that,  in 
every  case  where  the  policy  should  cease  or  become  null  and  void, 
all  previous  payments  made  thereon  should  be  forfeited  to  the  com- 
pany. 

The  non-payment  of  the  premiums  in  arrear  was  set  up  in  bar  of 
the  actions ;  and  the  plaintiffs  respectively  relied  on  the  existence 
of  the  war  as  an  excuse,  offering  to  deduct  the  premiums  in  arrear 
from  the  amounts  of  the  policies. 

The  decree  and  judgments  below  were  against  the  defendants. 

Mr.  Justice  Bradley,  after  stating  the  case,  delivered  the  opinion 
of  the  court. 

"  We  agree  with  the  court  below,  that  the  contract  is  not  an 
assurance  for  a  single  year,  with  a  j^rivilege  of  renewal  from  year  to 
year  by  paying  the  annual  premium,  but  that  it  is  an  entire  con- 
tract of  assurance  for  life,  subject  to  discontinuance  and  forfeiture 
for  non-payment  of  any  of  the  stipulated  premiums.  Such  is  the 
form  of  the  contract,  and  such  is  its  character.  *  *  * 

"  Each  instalment  is,  in  fact,  part  consideration  of  the  entire  in- 
surance for  life.  It  is  the  same  thing,  where  the  annual  premiums 
are  spread  over  the  whole  life.  *  *  * 

"  The  case,  therefore,  is  one  in  which  time  is  material  and  of  the 
essence  of  the  contract.  Non-payment  at  the  day  involves  absolute 
forfeiture,  if  such  be  the  terms  of  the  contract,  as  is  the  case  here. 
Courts  cannot  with  safety  vary  the  stipulation  of  the  parties  by  in- 
troducing equities  for  the  relief  of  the  insured  against  their  own 
negligence. 

"  But  the  court  below  bases  its  decision  on  the  assumption  that, 
when  performance  of  the  condition  becomes  illegal  in  consequence  of 


280  EFFECTS    OF   WAR    AS    BETWEEN    ENEMIES.  [PART  II. 

the  prevalence  of  public  war,  it  is  excused,  and  forfeiture  does  not 
ensue.  It  supposes  the  contract  to  have  been  suspended  during-  the 
war,  and  to  have  revived  with  all  its  force  when  the  war  ended. 

"  Such  a  suspension  and  revival  do  take  place  in  the  case  of  ordi- 
nary debts.  But  have  they  ever  been  known  to  take  place  in  the 
case  of  executory  contracts  in  which  time  is  material  ?  If  a  Texas 
merchant  had  contracted  to  furnish  some  Northern  explorer  a  thou- 
sand cans  of  preserved  meat  by  a  certain  day,  so  as  to  be  read}'  for 
his  departure  for  the  North  Pole,  and  was  prevented  from  furnish- 
ing it  by  the  civil  war,  would  the  contract  still  be  good  at  the  close 
of  the  war  five  years  afterwards,  and  after  the  return  of  the  ex- 
pedition ? 

"If  the  proprietor  of  a  Tennessee  quarry  had  agreed,  in  1860,  to 
furnish,  during  the  two  following  years,  ten  thousand  cubic  feet  of 
marble,  for  the  construction  of  a  building  in  Cincinnati,  could  he 
have  claimed  to  perform  the  contract  in  1865,  on  the  ground  that 
the  war  prevented  an  earlier  performance  ? 

"  The  truth  is,  that  the  doctrine  of  the  revival  of  contracts  sus- 
pended during  the  war  is  one  based  on  considerations  of  equitj'  and 
justice,  and  cannot  be  mvoked  to  revive  a  contract  which  it  would 
be  unjust  or  inequitable  to  revive. 

"In  the  case  of  life  insurance,  besides  the  materiality  of  time  in 
the  performance  of  the  contract,  another  strong  reason  exists  why 
the  policy  should  not  be  revived.  Tlie  parties  do  not  stand  on 
equal  ground  in  reference  to  such  a  revival. 

"It  would  operate  most  unjustly  against  the  company.  The 
business  of  insurance  is  founded  on  the  law  of  averages ;  that  of 
life  insurance  eminentl}^  so.  The  average  rate  of  moi'taiity  is  the 
basis  on  which  it  rests.  By  spreading  their  risks  over  a  large  num- 
ber of  cases,  the  companies  calculate  on  this  average  with  reasonable 
certainty  and  safety.  .Anything  that  interferes  with  it  deranges  the 
security  of  the  business.  If  every  policy  lapsed  by  reason  of  the 
war  should  be  revived,  and  all  the  back  premiums  should  be  paid, 
the  companies  would  have  the  benefit  of  this  average  amount  of 
risk. 

"  But  the  good  risks  are  never  heard  from  ;  only  the  bad  are  sought 
to  be  revived,  where  the  person  insured  is  either  dead  or  dying. 
Those  in  health  can  get  new  policies  cheaper  than  to  pay  arrearages 
on  the  old.  To  enforce  a  revival  of  the  bad  cases,  wliilst  the  company 
necessarily  lose  the  cases,  which  are  desirable,  would  be  manifestly 
unjust.  An  injured  person,  as  befc^re  stated,  does  not  stand  isolated 
and  alone.  Ills  case  is  connected  with  and  correlated  to  the  cases  of 
all  others  insured  by  the  same  company. 


CllAP.  II.]         NEW  YORK    LIFE  INS.  CO.  V.  STATHEM.  2S1 

"The  nature  of  the  business,  as  a  wliole,  must  be  looked  ut  to 
understand  the  general  equities  of  the  parties. 

"  We  are  of  opinion,  therefore,  that  an  action  cannot  be  niaintained 
for  the  amount  assured  on  a  })olicy  of  life-insurance  forfeited,  like 
those  in  question,  by  non-payment  of  the  premium,  even  though  the 
payment  was  prevented  by  the  existence  of  the  war. 

"  The  question  then  arises,  Must  the  insured  lose  all  the  money 
which  has  been  paid  for  premiums  on  their  respective  policies?  If 
tliey  must,  they  will  sustain  an  equal  injustice  to  that  which  the 
companies  would  sustain  by  reviving  the  policies.  At  the  very  first 
blush,  it  seems  manifest  that  justice  requires  that  they  should  have 
some  compensation  or  return  for  the  money  already  paid,  otliei-wise 
the  companies  would  be  the  gainers  from  their  loss  ;  and  that  from 
a  cause  for  which  neither  party  is  to  blame.  The  case  may  be 
illustrated  thus :  Suppose  an  inhabitant  of  Georgia  had  bargained 
for  a  house,  situated  in  a  Northern  city,  to  be  paid  for  by  instal- 
ments, and  no  title  to  be  made  until  all  the  instalments  were  paid, 
with  a  condition  that  on  the  failure  to  pay  any  of  the  instalments 
when  due,  the  contract  should  be  at  an  end,  and  the  previous  pay- 
ments forfeited  ;  and  suppose  that  this  condition  was  declared  by 
the  parties  to  be  absolute  and  the  time  of  payment  material.  Xow, 
if  some  of  the  instalments  were  paid  before  the  war,  and  others  ac- 
cruing during  the  war  were  not  paid,  the  contract,  as  an  executory 
one,  was  at  an  end.  If  the  necessities  of  the  vendor  obliged  him  to 
avail  himself  of  the  condition,  and  to  resell  the  property  to  another 
party,  would  it  be  just  for  him  to  retain  the  money  he  had  received? 
Perhaps  it  might  be  just  if  the  failure  to  pay  had  been  voluntary,  or 
could,  by  possibility,  have  been  avoided. 

"  But  it  was  caused  by  an  event  beyond  the  control  of  either  party, 
— an  event  which  made  it  unlaAvful  to  pay.  In  such  case,  whilst  it 
would  be  unjust,  after  the  war,  to  enforce  the  contract  as  an  execu- 
tory one  against  the  vendor  contrary  to  his  Avill,  it  would  be  equally 
unjust  in  him,  treating  it  as  ended,  to  insist  upon  the  forfeiture 
of  the  money  already  paid  on  it.  An  equitable  right  to  some 
compensation  or  return  for  previous  payments  would  clearly  result 
from  the  circumstances  of  the  case.  The  money  paid  by  the  pur- 
chaser, subject  to  the  value  of  any  possession  which  he  may  liave 
enjoyed,  should,  ex  cequo  et  bono,  be  returned  to  him.  This  would 
clearly  be  demanded  by  justice  and  right. 

"  ^Vnd  so,  in  the  present  case,  whilst  the  insurance  company  has  a 
right  to  insist  on  the  materiality  of  time  in  the  condition  of  payment 
of  premiums,  and  to  hold  the  contract  ended  by  reason  of  non-pay- 
ment, they  cannot  with  any  fairness  insist  u])on   tlie  condition,  as  it 


282  EFFECTS    OF    M'AR    AS    BETWEEN    ENEMIES.  [PART  H. 

regards  the  forfeiture  of  the  premiums  ah-eady  paid  ;  tliat  would  be 
clearly  unjust  and  inequitable.  The  insured  has  an  equitable  right 
to  have  this  amount  restored  to  him,  subject  to  a  deduction  for  the 
value  of  the  assurance  enjoyed  by  him  whilst  the  policy  was  in  ex- 
istence ;  in  other  words,  he  is  fairly  entitled  to  have  the  equitable 
vahie  of  his  policy.  *  *  * 

"  We  are  of  opinion,  therefore,  first,  that  as  the  comjDanies  elected 
to  insist  upon  the  condition  in  these  cases,  the  policies  in  question 
must  be  regarded  as  extinguished  by  the  non-payment  of  the  premi- 
ums, though  caused  by  the  existence  of  the  war,  and  that  an  action 
will  not  lie  for  the  amount  insured  thereon. 

"  Secondl}',  that  such  failure  being  caused  by  a  public  war,  without 
the  fault  of  the  asstired,  they  are  entitled  ex  ((^qiio  et  bono  to  recover 
the  equitable  value  of  the  policies  with  interest  from  the  close  of  the 
war.  *  *  * 

"  In  estimating  the  equitable  value  of  a  policy,  no  deduction  should 
be  made  from  the  precise  amount  which  the  calculations  give,  as  is 
sometimes  done  where  policies  are  voluntarily  surrendered,  for  the 
purpose  of  discouraging  such  surrenders  ;  and  the  value  should  be 
taken  as  of  the  day  when  the  first  default  occurred  in  the  payment 
of  the  premium  by  which  the  policy  became  forfeited.  In  each  case 
the  rates  of  mortality  and  interest  used  in  the  tables  of  the  company 
will  form  the  basis  of  the  calculation. 

"  The  decree  in  the  equity  suit  and  the  judgments  in  the  actions 
at  law  are  reversed,  and  the  causes  respectively  remanded  to  be  pro- 
ceeded with  according  to  law  and  the  directions  of  this  opinion. 

Clifford,  J.,  (with  wliom  concurred  IIl'xt,  J..)  dissenting : — 
"  Where  the  parties  to  an  executory  money-contract  live  in 
different  countries,  and  the  governments  of  those  countries  become 
involved  in  public  war  with  each  other,  the  contract  bet^'een  such 
parties  is  suspended  during  the  existence  of  the  war,  and  revives 
when  peace  ensues;  and  that  rule,  in  my  judgment,  is  as  applicable 
to  the  contract  of  life-insurance  as  to  any  otlier  executory  con- 
tract. 

"  Consequently,  I  am  obliged  to  dissent  from  the  opinion  and 
judgment  of  the  court  in  these  cases."  ^ 

"^Effect  of  war  upon  treaties. — "General  compacts  between  nations,"  says  Wheaton 
(Lawrence's  eJ.,  p.  46'J),  "  may  be  divideJ  into  what  are  called  trun.sitor!/  coiivtn- 
tioiis,  and  treaties  properly  so  tcrnu'd.  The  first  are  perpetual  in  their  nature,  so 
that,  being  once  carried  into  effect,  they  subsist  independent  of  any  change  in  the 
sovereignty  and  form  of  government  of  the  contracting  parties;  and  although  their 
operation  may,  in  some  cases,  be  suspended  diirinu  war,  tliey  revive  on  the  return 
of  peace  without  any  express  stipulation.  Such  are  treaties  of  cession,  boundary, 
or  exchange  of  territory,  or  tliose  which  create  a  permanent  servitude  in  favor  of 
one  nation  within  the  territory  of  another." 


CHAr.  II.]  THE   "  HOOP."  283 


Section  31. — Tkade  with  the  Exemy. 


THE  "HOOP." 

High  Court  of  Admiralty,  1799. 

(1  C.  nobin.son,  19G.) 

British  niPi'chants  are  not  at  liberty  to  trade  with  the  enemy  witlioiit  the  King's 
license;  all  property  taken  in  such  trade  is  conflscaljle  as  prize  to  the  captor. 

Jndg'ineiit. — Sir  W.  Scott. — "  This  is  the  case  of  a  ship  laden  with 
flax,  madder,  geneva,  and  cheese,  and  bound  from  Rotterdam  osten- 
sibly to  JJergen;  but  she  was  in  truth  coming-  to  a  British  port,  and 
took  a  destination  to  Bergen  to  deceive  the  French  cruisers ;  and,  as 
tliL-  claim  discloses  (of  which  I  see  no  reason  to  doubt  the  truth),  the 
goods  were  to  be  imported  on  account  of  British  merchants,  being 
most  of  them  articles  of  considerable  use  in  the  manufactures  and 
commei'ce  of  this  country,  and  being  brought  under  an  assurance 
from  the  commissioners  of  customs  in  Scotland  that  they  might  be 
lawfully  imported  without  any  license,  by  virtue  of  the  statute  35 
Geo.  3,  c.  15,  §  180.  ^ 

"  It  is  said  that  these  circumstances  compose  a  case  entitled  to 
great  indulgence  ;  and  I  do  not  deny  it.  But  if  there  is  a  rule  of  law 
on  the  subject  binding  the  court,  I  must  follow  where  that  rule  leads 
me  ;  though  it  leads  to  consequences  which  I  may  privately  regret, 
when  I  look  to  the  particular  intentions  of  the  parties. 

"  In  my  opinion  there  exists  such  a  general  rule  in  the  maritime 
jui'isprudence  of  this  cottntry,  by  wiiich  all  trading  with  the  public 
enemy,  unless  with  the  permission  of  the  sovereign,  is  interdicted. 
It  is  not  a  principle  peculiar  to  the  maritime  law  of  this  country  ;  it 
is  laid  down  by  Bynkershoek  as  an  universal  principle  of  law. — 
'  Ex  natura  belli  commercia  inter  hostes  cessare  non  est  dubitandum. 
Quamvis  nulla  specialis  sit  commerciorum  prohibitio,  ipso  tamen 

1  The  35  G.  3,  c.  15  (March  16,  1795),  enacts,  "  that  it  shall  be  lawful  to  import 
such  goods  belonging  to  subjects  of  the  United  Provinces,  or  to  any  who  were  sub- 
jects before  the  19th  of  January,  1795,  or  to  any  subject  of  his  majesty,  to  be 
landed  and  secured  in  warehouses  for  the  benefit  of  the  proprietor,  and  for  the  se- 
curity of  the  revenue."  Subsequent  acts  contain  further  regulations  for  property 
Ci.;u.ing  from  Holland,  in  the  ambiguous  situation  of  tlie  two  countries  at  that  time. 


284  EFFECTS   OF   WAR    AS    BETWEEN   ENEMIES.  [PAKT  II, 

jure  belli  commercia  esse  vetita,  ipsse  indictiones  bellorum  satis  de- 
caraiit,  etc'  He  proceeds  to  observe,  that  the  hiterests  of  trade,  and 
the  necessity  of  obtaining  certain  connnodities  have  sometimes  so 
far  overpowered  this  rule,  that  different  species  of  traffic  have  been 
permitted,  '■  prout  e  re  sua,  suhditorumque  suorum  esse  censent  pn'u- 
cipes '  (Bynk.  Q.  J.  P.  B.  1,  c.  3.)  But  it  is  in  all  cases  the  act  and 
permission  of  the  sovereign.  Wherever  that  is  permitted,  it  is  a 
suspension  of  the  state  of  war  quo  ad  hoc.  It  is,  as  he  expresses  it, 
^pi'O  parte  sic  bellum,  pjro  pjarte  pax  inter  suhditos  iitri usque principes^ 
It  appears  from  these  passages  to  have  been  the  law  of  Holland ; 
Valin,  1.  iii.,  tit.  6,  art.  3,  states  it  to  have  been  the  law  of  France, 
whether  the  trade  was  attempted  to  be  carried  on  in  national  or  in 
neutral  vessels ;  it  will  appear  in  a  case  which  I  shall  have  occa- 
sion to  mention.  Tlie  Fortuna,  to  have  been  the  law  of  Spain  ;  and  it 
may,  I  think,  without  rashness  be  affirmed  to  have  been  a  general 
principle  of  law  in  most  of  the  counti-ies  of  Europe. 

"  By  the  law  and  constitution  of  this  country,  the  sovereign  alone 
has  the  power  of  declaring  war  and  peace.  He  alone  therefore  who 
has  the  power  of  entirely  removing  the  state  of  war,  has  the  power 
of  removing  it  in  part,  by  permitting,  where  he  sees  proper,  that 
commercial  intercourse  which  is  a  partial  suspension  of  the  war. 
There  may  be  occasions  on  which  such  an  intercourse  may  be  highly 
expedient.  But  it  is  not  for  individuals  to  determine  on  the  expe- 
diency of  such  occasions  on  their  own  notions  of  commerce,  and  of 
commerce  merely,  and  possibly  on  grounds  of  private  advantage  not 
very  reconcilable  with  the  general  interest  of  the  state.  It  is  for  the 
state  alone,  on  more  enlarged  views  of  policy,  and  of  all  circum- 
stances which  may  be  connected  with  such  an  intercourse,  to  deter- 
mine when  it  shall  be  permitted,  and  under  wdiat  regulations.  In 
my  opinion,  no  principle  ought  to  be  held  more  sacred  than  that  this 
intercourse  cannot  subsist  on  any  othei-  footing  than  that  of  the 
direct  permission  of  the  state.  Who  can  be  insensible  to  the  conse- 
quences that  might  follow,  if  every  person  in  a  time  of  war  had  a 
right  to  carry  on  a  commercial  intercourse  with  the  enemy,  and  un- 
der color  of  that,  had  the  means  of  carrying  on  any  other  species  of 
intercourse  he  might  think  fit?  The  inconvenience  to  the  public 
might  be  extreme ;  and  Avhere  is  the  inconvenience  on  the  other  side, 
that  the  merchant  should  be  compelled,  in  such  a  situation  of  the 
two  countries,  to  carry  on  his  trade  between  them  (if  necessary)  un- 
der the  eye  and  control  of  the  government,  charged  with  the  care  of 
the  public  safety? 

"Another  princii)le  of  law,  of  a  less  public  nature,  but  equally  general 
in  its  reception  and  direct  in  its  application,  forbids  this  sort  of  com- 


CHAP.  II.]  TPIE    "  HOOP."  285 

iiiunication  as  fundamentally  inconsistent  with  the  relation  at  that 
time  existing- between  the  two  countries;  and  that  is,  the  total  in- 
ability to  sustain  any  contract  by  an  appeal  to  the  tribunals  of  the 
one  country,  on  the  part  of  the  subjects  of  the  other.  In  the  law  of 
ahnost  every  country,  tlie  character  of  alien  enemy  carries  with  it  a 
disability  to  sue,  or  to  sustain  in  the  language  of  the  civilians  a  per- 
iioiKf  st'f/idi  injiaUcio.  The  peculiar  law  of  our  own  country  applies 
this  principle  with  great  rigor.  The  same  principle  is  received  in 
our  courts  of  the  law  of  nations;  they  are  so  far  l^ritish  courts,  that 
no  man  can  sue  therein  who  is  a  subject  of  the  enemy,  unless  under 
particular  circumstances  that  ^:)ro  Jute  vice  discharge  him  from  the 
character  of  an  enemy ;  such  as  his  coming  under  a  flag  of  truce,  a 
cartel,  a  pass,  or  some  other  act  of  public  authority  that  puts  him  in 
tlie  King's  peace  2^^'^  hue  vice.  But  otherwise  he  is  totally  ex,  lex, : 
even  in  the  case  of  ransoms  which  are  contracts,  but  contracts  aris- 
ing ex  jure  hell%  and  tolerated  as  such,  the  enemy  was  not  permitted 
to  sue  in  his  own  proper  person  for  the  payment  of  the  ransom  bill  ; 
but  the  payment  was  enforced  by  an  action  brought  by  the  impris- 
oned hostage  in  the  courts  of  his  own  countiy,  for  the  recovery  of 
his  freedom.  A  state  hi  which  contracts  cannot  be  enforced,  cannot 
be  a  state  of  legal  commerce.  If  the  parties  who  are  to  contract 
have  no  right  to  compel  the  performance  of  the  contract,  nor  even  to 
appear  in  a  court  of  justice  for  that  purpose,  can  there  be  a  stronger 
proof  that  the  law  imposes  a  legal  inability  to  contract  ?  To  such 
transactions  it  gives  no  sanction  ;  they  have  no  legal  existence;  and 
the  whole  of  such  commerce  is  attempted  without  its  protection  and 
against  its  authority.  Bynkershoek  expresses  himself  with  great 
force  upon  this  argument  in  his  first  book,  chapter  7,  where  he  lays 
down  that  the  legality  of  commerce  and  the  mutual  use  of  courts  of 
justice  are  inseparable ;  he  says,  that  cases  of  commerce  are  undis- 
tinguishable  from  cases  of  any  other  species  in  this  respect.  '  Si  liosti 
semel  permittas  actiones  exercere,  difficile  est  distinguere  ex  qua 
causa  oriunter,  nee  potui  animadvertere  illam  distinctionem  usu 
fuisse  servatam.' 

"Upon  these  and  similar  grounds  it  has  been  the  established  rule 
of  law  of  this  court,  confirmed  by  the  judgment  of  the  Suprenie 
Court,  that  a  trading  with  the  enemy,  except  under  a  royal  license, 
subjects  the  property  to  confiscation ; — and  the  most  eminent  persons 
of  the  law  sitting  in  the  Supreme  Court  have  uniformly  sustained 
such  judgments.  *  *  *  ^ 

^In  support  of  this  rule  Sir  W.  Scott  reviews  a  large  number  of  cases  decided  on 
appeal  by  the  Lords  of  Appeal.  These  cases  are  the  following  :  The  Kingende 
Jacob,  1750  :  The  Lady  Jane,  1749;  Deergaden,  1747  ;  The  Eliz.ibe:h,  1741)  ;  Tlie 


286  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.       [I'ART  11. 

"  I  omit  many  other  cases  of  the  last  and  the  present  ^\■ar  merely 
on  this  ground  that  the  rule  is  so  firmly  established,  that  no  one  case 
exists  which  has  been  permitted  to  contravene  it, — for  I  take  upon 
me  to  aver,  that  all  cases  of  this  kind  which  have  come  before  that 
tribunal  have  received  an  uniform  determination.  The  cases  which 
I  have  produced,  prove  that  the  rule  has  been  rigidly  enforced : — 
Avhere  acts  of  parliament  have  on  different  occasions  been  made  to 
relax  the  navigation-law  and  other  revenue  acts  ;  where  the  govern- 
ment has  authorized,  under  the  sanction  of  an  act  of  parliament,  a 
homeward  trade  from  the  enemy's  possession,  but  has  not  especially 
protected  an  outward  trade  to  the  same,  though  intimately  con- 
nected with  that  homeward  trade,  and  almost  necessary  to  its  exist- 
ence ;  that  it  has  been  enforced  where  strong  claim  not  merely  of 
convenience,  but  almost  of  necessity,  excused  it,  on  behalf  of  the 
individual ;  that  it  has  been  enforced  where  carriages  have  been  laden 
before  the  war,  but  where  the  parties  have  not  used  all  possible  dili- 
gence to  countermand  the  voyage  after  the  first  notice  of  hostilities  ; 
and  that  it  has  been  enforced  not  only  against  the  subjects  of  the 
crown,  but  likewise  against  those  of  its  allies  in  the  A\'ar,  upon  the 
supposition  that  the  rule  was  founded  on  a  strong  and  universal 
principle,  which  allied  states  in  war  had  a  right  to  notice  and  apply, 
mutually,  to  each  other's  subjects.  Indeed  it  is  the  less  necessary 
to  produce  these  cases,  because  it  is  expressly  laid  down  by  Lord 
Mansfield,  as  I  understand  him,  that  such  is  the  maritime  law  of 
England."     {Gist  v.  3Iason,  1  T.  R.,  85.) 

[In  conclusion.  Sir  \V.  Scott  held  that  the  acts  of  Parliament  in 
question  were  not  intended  to  legalize  the  trade  without  special 
licenses  ;  and  that  the  law  advisers  of  the  commissioners  were  wrong 
in  their  conclusions  to  that  effect.  The  property  was  therefore  con- 
demned according  to  the  strict  rule  of  law.] 

Juffrow  Louisa  Margaretha,  1781;  The  St.  Louis,  1781;  The  Victoria,  1781;  The 
Conite  de  Wolirougoff,  1781  ;  The  Guidita,  1785  :  Tlie  Eenigheid,  1795  ;  The 
Fortuna,  1795  ;  The  Freeden,  1795  ;  The  William,  1795. 

These  were  all  cases  in  which  the  property  in  question  was  condemned,  though 
some  of  them,  like  the  case  of  the  Hoop,  were  cases  of  great  hardship  upon 
British  merchants. 


CHAP,  n.]  POTTS    V.  BELL.  2tS7 


POTTS  V.  BELL. 

King's  Bexcii,  1800. 

(8  Term  Reports,  54S.) 
Trad'ng  with  the  enemy  without  the  King's  license  is  illegal. 

This  was  the  case  of  a  neutral  ship  captured  by  a  Freiicli  cruiser  on 
a  voyage  from  Rotterdam  to  Hull,  for  having  on  board  enemy  property 
(English).  These  goods  were  bought  in  Rotterdam  by  the  agent 
of  an  English  house,  after  the  breaking  out  of  hostilities  between 
France  and  England,  and  insured  in  an  English  company.  An  action 
was  brought  on  the  insurance  policy. 

The  defendant  insisted  that  the  plaintiff  was  not  entitled  to  re- 
cover ;  because  the  policy  was  void,  inasmuch  as  it  was  not  hiAvful 
to  trade  with  the  enemy.  The  Common  Pleas  found  for  the  plaint- 
iffs.    But  on  appeal,  this  judgment  was  reversed : 

Judgment, — Lord  Kenyox,  Ch.,  J. : — "  The  court  had  very  fully  con- 
sidered the  case  immediately  after  the  very  learned  argument  which 
had  been  made  by  the  King's  advocate.  Sir  J.  Xicholl,  in  the  last 
term.  That  the  reasons  \^inch  he  had  urged  and  the  authorities  he 
had  cited  were  so  many,  so  uniform,  and  so  conclusive  to  show  that 
a  British  subject's  trading  with  an  enemy  was  illegal,  that  the  ques- 
tion might  be  considered  as  finally  at  rest.  That  those  authorities, 
it  was  true,  were  mostly  drawn  from  the  decisions  of  the  admiralty 
courts ;  and  that  though  all  diligence  had  been  used,  there  was  only 
one  direct  authority  on  the  subject  to  be  found  in  the  common-law 
books,  and  that  one  was  to  the  same  effect.  But  that  the  circum- 
stances of  there  being  that  single  case  only  was  strong  to  show 
that  the  point  had  not  been  since  disputed,  and  that  it  might  now  be 
taken  for  granted  that  it  was  a  principle  of  the  common  law  that 
trading  with  an  enemy  without  the  King's  license  was  illegal  in 
Ih'itish  subjects.  That  it  was  therefore  needless  in  this  case  to 
delay  giving  judgment  for  the  sake  of  pronouncing  the  opinion  of 
the  court  in  more  formal  terms ;  more  especially  as  they  could  do 
little  more  than  recapitulate  the  judgment  with  the  long  train  of 
authorities,  already  to  be  found  in  the  clearest  terms  in  the  principal 
report"  of  the  case  of  the  Hooj)  published  by  Dr.  Robinson.  That 
the  consequence  was  that  the  judgment  of  the  court  of  Common 
Pleas  must  be  reversed." 


288  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.         [PAET  11. 


THE  "  RAPID." 

Supreme  Court  of  the  United  States,  1814. 

(8  Cranch,  loo.) 

After  a  doclaration  of  war,  an  American  citizen  cannot  legally  send  a  vessel  to 
the  enemy's  country  to  bring  away  his  property. 

This  was  an  appeal  from  the  sentence  of  the  circuit  court,  for  the 
district  of  Massachusetts. 

The  material  facts  in  the  case  were  these. 

Jabez  Harrison,  a  native  American  citizen,  the  claimant  and  ap- 
pellant in  this  case,  had  purchased  a  quantity  of  English  goods  in 
England,  before  the  declaration  of  war  by  the  United  States  against 
that  countr}',  and  deposited  them  on  a  small  island,  belonging  to  the 
English,  called  Indian  Island,  and  situated  near  the  line  between 
Xova  Scotia  and  the  United  States.  Upon  the  breaking  out  of  the 
war,  Harrison's  agents  in  Boston  hired  the  Iif/pid,  a  vessel  licensed 
and  enrolled  for  the  cod  fisher}^  to  proceed  to  the  place  of  deposit 
and  bring  away  the  goods.  The  Hapid  accordingly  sailed  from  Bos- 
ton, on  the  3d  of  July,  1812,  with  Harrison,  the  claimant,  on  board, 
proceeded  to  Eastport,  where  Harrison  was  left,  and  from  thence, 
agreeably  to  Harrison's  orders,  to  Indian  Island,  where  the  cargo  in 
question  was  taken  on  board.  On  the  eighth  of  July,  while  on  his 
return,  she  was  captured  by  the  Jefferson  Privateer,  on  the  high 
seas,  and  brought  into  Salem.  The  goods,  being  libeled  as  prize, 
and  claimed  by  Harrison  as  his  property,  were  condemned  in  the 
circuit  court  of  Massachusetts  to  the  captors,  on  the  ground  that 
by  "  trading  with  the  enemy,"  they  had  acquired  the  character  of 
enemies'  property. 

A  claim  was  also  interposed  by  the  United  States,  on  the  ground 
of  a  violation,  by  the  liapid,  of  the  non-intercourse  act.  This  claim 
was  also  rejected.  From  the  decree  of  the  circuit  court  the  United 
States  and  Harrison  appealed ;  at  the  trial  before  the  Supreme  Court 
the  government  of  the  United  States  did  not  interpose  its  claim. 

Tlie  Court  dwelt  at  considerable  length  upon  the  general  princi- 
ples of  the  rule  which  prohibited  trading  between  enemies;  and  as 
there  was  no  question  of  the  observance  of  this  rule  in  international 
law,  this  part  of  the  opinion  is  omitted.  Tlie  claimant  contended, 
however,  that  there  was  not  a  trading  with  the  enemy  in  this  case ; 


CHAP.  II.]  THE   "  RAPID/'  289 

that  on  the  hreaking  out  of  war,  every  citizen  had  a  rig-ht  to  with- 
draw pr()[)erty  lying  in  the  enemy's  country  and  purchased  before 
the  war.  Only  so  much  of  the  ophiion  as  bears  upon  this  point  is 
given. 

Judgment, — ^Jonxsox,  J. : — 

"*  *  *  After  taking  this  general  view  of  the  principal  doctrine 
nil  this  subject,  we  will  consider  the  points  made  in  behalf  of  the 
claimant  in  this  case,  and,  1.  Whether  this  was  a  trading,  in  the  eye 
of  the  prize  law,  such  as  Avill  subject  the  property  to  capture? 

"  The  force  of  the  argument  on  this  point  depends  upon  the  terms 
made  use  of.  If  by  tnuUng,  in  prize  law,  was  meant  that  signifi- 
cation of  the  term  which  consists  in  negotiation  or  contract,  this 
case  would  certainly  not  come  under  the  penalties  of  the  rule.  But 
the  object,  policy,  and  spirit  of  the  rule  is  to  cut  oft"  all  communica- 
tion or  actual  locomotive  intercourse  between  individuals  of  the 
belligerent  states.  Xegotiation  or  contract  has,  therefore,  no  nec- 
essary connection  with  the  offence.  Intercourse  inconsistent  with 
actual  hostility,  is  the  offence  against  which  the  o}iei-ation  of  the 
rule  is  directed ;  and  by  substituting  this  definition  for  that  of  trad- 
ing with  an  enemy,  an  answer  is  given  to  this  argument. 

"  2.  Whether,  on  the  breaking  out  of  a  war,  the  citizen  has  a  right 
to  remove  to  his  own  country  with  his  property,  is  a  question  which 
Ave  conceive  does  not  arise  in  this  case.  This  claimaint  certainly 
had  not  a  right  to  leave  the  United  States,  for  the  purpose  of  bring- 
ing home  his  property  from  an  enemy's  country ;  nnich  less  could 
he  claim  it  as  a  right  to  bring  into  this  country,  goods,  the  importa- 
tion of  which  was  expressly  prohibited.  As  to  the  claim  for  the 
vessel,  it  is  founded  on  no  pretext  whatever ;  for  the  undertaking, 
besides  being  in  violation  of  two  laws  of  the  United  States,  was  al- 
together voluntary  and  inexcusable.  With  regard  to  the  importa- 
tions from  Great  Britain  about  this  time,  it  is  Avell  known  that  the 
forfeiture  was  released  on  grounds  of  policy  and  a  supposed  obliga- 
tion induced  by  the  assurances  which  had  been  held  out  by  the 
American  charge  d'affaires  in  England.  But  this  claimant  could 
allege  no  such  excuse. 

"  3.  On  the  third  point,  we  are  of  opinion  that  the  foregoing  obser- 
vations furnish  a  sufficient  answer. 

"If  the  right  to  capture  property  thus  offending,  grows  out  of  a 
state  of  war,  it  is  enough  to  support  the  condemnation  in  this  case, 
that  the  act  of  Congress  should  produce  a  state  of  war,  and  thit  the 
connnission  of  the  privateer  should  authorize  the  capture  of  any 
property  that  shall  assume  the  belligerent  chai'acter. 

"  Such  a  character  Ave  are  of  opinion  this  vessel  and  cargo  took 
19 


290  EFFECTS    OF    WAK    AS   BETWEEN    ENEMIES.       [I'AKT  II. 

upon  herself ;  or  at  least,  she  is  deprived  of  the  right  to  prove  her- 
self otherwise. 

"  We  are  aware  that  there  may  exist  considerable  hardshi[)  in  this 
case ;  the  owners,  both  of  vessel  and  cargo,  may  have  been  uncon- 
scious that  they  were  violating  the  duties  which  a  state  of  war  im- 
posed upon  them.  It  does  not  appear  that  they  meant  a  daring 
violation  either  of  the  laws  or  belligerent  rights  of  their  country. 
But  it  is  the  unenvied  province  of  this  court  to  be  directed  by  the 
head,  and  not  by  the  heart.  In  deciding  upon  principles  that  must 
define  the  rights  and  duties  of  the  citizen  and  direct  the  future  de- 
cisions of  justice,  no  latitude  is  left  for  the  exercise  of  feeling." 


THE  "ST.  LAWRENCE." 

Supreme  Court  of  the  United  States,  1814 — 1815. 

(8  Cranch,  434,  and  9  Crunch,  120.) 

Without  deciding  whether  an  American  citizen  may,  after  tlie  outbreak  of  war, 
witlidraw  with  liis  property  from  tlie  enemy's  country,  held,  that  he  cannot  do  so 
eleven  months  after  the  declaration  of  war. 

This  was  an  appeal  from  the  sentence  of  the  United  States  Circuit 
Court  for  the  district  of  Xew  Hampshire. 

The  ship  St.  Lawrence  was  captured  on  the  lioth  of  June,  1813, 
and,  with  her  cargo,  libeled  as  prize,  in  the  District  Court  of  Xew 
Hampshire.  On  the  5th  of  IMay,  1813,  a  license  was  granted  by  the 
privy  council  of  Great  Britain  to  Thomas  White  of  London,  and 
others,  permitting  them  to  export,  direct  to  the  United  States,  an 
enumerated  cargo  in  the  St.  Lawrence,  provided  she  cleared  out  be- 
fore the  last  day  of  that  month.  On  the  30th  of  May,  1813,  she  sailed 
from  Liverpool  for  the  L'nited  States  with  the  cargo  specified  in  the 
license.  Mr.  Alexander  M'Gregor  and  his  family  were  passengers  on 
board. 

It  appeared  from  the  examination  of  Mr.  ^M'Gregor,  that  he  was 
born  in  Scotland,  was  naturalized  in  the  United  States  in  1795,  had 
lived,  the  last  seven  years,  in  Liverpool,  and  was  returning  in  the 
St.  Lawrence,  with  his  family  to  the  United  States. 

There  were  several  claimants,  but  only  so  much  of  the  case  is 
given  as  refers  to  the  claims  of  M'Gregor  and  Penniman. 

Webster,  for  M'Gregor  and  Penniman,  said  : 

"  We  contend  that  a  distinction  is  to  be  taken  between  an  American 
citizen,  domiciled  m  England  at  the  breaking  out  of  the  war,  with- 


CHAP.  II.]  THE    "  ST.  LAWEENCE."  201 

drawing  his  funds,  and  an  American  citizen  who  goes  to  England 
after  the  declaration  of  war,  for  the  same  purpose.  That  the  former, 
whether  a  native  or  naturalized  citizen,  has  a  right  (and  perhaps  it 
is  his  duty)  to  return  to  tlie  United  States  with  his  effects.  If  he 
has  no  such  right,  why  should  the  law  of  nations  have  provided  a 
reasonable  time  for  removing  in  case  of  war  ? 

"  This  rule  of  the  law  of  nations  has  been  founded  upon  the  necessity 
of  the  case,  and  upon  the  hardship  which  would  attend  the  want  of 
such  a  rule.  A  citizen  of  one  country  may  lawfully  go  to  any  othei- 
country,  in  time  of  peace,  and  take  up  his  residence  there  ;  and  it 
would  be  very  hard  if  he  must  suffer  by  the  sudden  and  unexpected 
breaking  out  of  a  war — an  event  over  which  he  had  no  control.  A 
neutral  would  be  permitted  to  withdraw  his  funds  in  such  a  case  ; 
and  if  we  should  allow  the  privilege  to  neutrals,  why  should  we  deny 
it  to  our  own  citizens  ?  1  Rob.,  1,  The  Vigilantict  1  /  Bos.  and  Pul^ 
355,  Bell  V.  Gitson. 

"  The  case  of  Escott,  cited  in  The  Hoop,  1  Rob.,  1G5,  19G,  may  per- 
haps be  thought  to  make  against  our  claim. 

"  But  the  cases  are  not  alike.  In  that  case,  Escott  sent  for  his  prop- 
erty :  here  M'Gregor  came  with  his. 

"  A  character  gained  by  residence,  is  lost  by  non-residence.  "When 
M'Gregor  ceased  to  reside  in  England,  his  character,  if  hostile 
before,  no  longer  continued  hostile.  That  it  was  not  his  intention 
to  continue  his  residence  in  England,  is  clearly  evidenced  by  his 
actual  return  to  the  United  States  with  his  family. 

"  With  regard  to  his  half  of  the  ship,  we  contend  that  if  he  had  a 
right  to  return,  he  had  a  right  to  use  the  means  necessary  for  that 
purpose — he  had  a  right  to  purchase  a  ship  for  the  conveyance  of 
himself  and  his  family.  So  if  it  was  lawful  for  him  to  withdraw  his 
funds,  he  might  lawfully  invest  those  funds  in  merchandise,  if  he 
could  not  otherwise  withdraw  them.  4  Rob.,  161, 195,  Tlie  Madonna 
delle  Grade  ;  3  Rob.,  11,  12,  The  Indian  Chief;  5  Rob.,  248,  The 
President;  5  Rob.,  84,90,  The  Ocean;  5  Rob.,  GO,  The  Bianar 

Judgment : — 

"  It  is  not  the  intention,  to  express  any  opinion  as  to  the  right  of 
an  American  citizen,  on  the  breaking  out  of  hostilities,  to  M'ithdraw 
his  property  purchased  before  the  war,  from  an  enemy  country. 
Admitting  such  right  to  exist,  it  is  necessary  that  it  should  be  ex- 
ercised with  due  diligence,  and  within  a  reasonable  time  after  the 
knowledge  of  hostilities.  To  admit  a  citizen  to  withdraw  property 
from  an  enemy  countr}',  a  long  time  after  the  war,  under  the  pretence 
of  its  having  been  purchased  before  the  war,  would  lead  to  the  most 
injurious   consequences,  and  hold  out  strong  temptations  to  every 


292  EFFECTS    OF    AVAR    AS    UETWEEX    ENE:MIES.         [PAliT  II. 

species  of  fraudulent  and  illegal  traflBc  with  the  enemy.  To  such  an 
unlimited  extent  we  are  all  satisfied  that  the  right  cannot  exist. 
The  present  shipment  was  not  made  until  more  than  eleven  months 
had  elapsed  after  war  w' as  declared ;  and  we  are  all  of  opinion  that  it 
was  then  too  late  for  the  party  to  make  the  shipment,  so  as  to  exempt 
him  from  the  penalty  attached  to  an  illegal  traffic  w'ith  the  enemy. 
The  consequence,  is  that  the  property  of  JMr.  Penniman  must  be 
condennied. 

"  And  their  decision  is  fatal,  also,  to  the  claim  of  jMr.  M'Gregor. 
Independent,  indeed,  of  the  principle,  there  are  many  circumstances 
in  the  case  unfavorable  to  the  latter  gentleman.  In  the  first  place, 
it  is  not  pretended  that  the  goods  included  in  his  claim  Avere  pur- 
chased before  the  war.  In  the  next  place,  he  was  the  projector  of 
the  present  voyage,  and  became,  as  to  one  moiety,  the  charterer  or 
purchaser  of  the  ship.  Nearly  all  the  cargo  consisted  of  goods  belong- 
ing (as  it  must  now  be  deemed)  exclusively  to  British  merchants. 
He  was,  therefore,  engaged  in  an  illegal  traffic  of  the  most  noxious 
nature  ;  a  traffic  not  only  prohibited  by  the  laAv  of  war,  but  by  the 
municipal  regulations  of  his  adopted  country.  His  whole  property, 
therefore,  embarked  in  such  an  enterprise,  must  alike  be  inflicted 
with  the  taint  of  forfeiture." 


THE  BRIG  "JOSEPH." 

U.  S.  Circuit  Court  for  Massachusetts,  1813. 

(1  GalUson,  545.) 

When  a  citizen  of  the  United  States  is  residing  in  the  enemy's  coimtiy  at  the 
outbreak  of  war,  lie  is  not  permitted  to  bring  liis  property  baclv  in  sucli  a  way  as 
to  involve  a  trade  with  the  enemy. 

The  following  is  an  extract  from  the  opinion  of  3Ir.  Justice  Story  : 
— "  It  has  been  farther  argued,  that  a  declaration  of  war  is,  in  effect, 
a  command  to  the  citizens  of  the  belligerent  country  abroad  at  the 
time,  to  return  home,  and.  that  the  law^  allows  a  reasonable  time" 
and  w^ay  to  effect  it. 

"  I  am  not  aware  of  any  principle  of  public  law,  which  obliges  every 
absent  citizen  to  return  to  his  countiy,  on  the  breakiiig  out  of  the  war, 
nor  has  any  authority  been  produced,  which  countenances  the  posi- 
tion. It  may  be  admitted,  that  the  sovereign  power  of  the  country 
has  a  right  to  require  the  services  of  all  its  citizens,  in  time  of  war, 
and  f<jr  this  purpose  may  recall  them  home  under  penalties  for  dis- 


CHAP,  n.]  THE    "•  WILLIAM   BAGALAY."  293 

obedience.  But  until  the  sovereign  power  has  promulgated  such 
command,  the  citizens  of  the  country  have  a  perfect  right  to  pursue 
their  ordhiary  business  and  trade  in  and  with  all  other  countries, 
except  that  of  the  enemy.  Upon  any  other  supposition,  all  foreign 
connnerce  would,  during  war,  be  snspended ;  for  if  it  were  the  duty 
of  absent  citizens  to  return,  it  would,  upon  the  same  principle,  be 
the  duty  of  those  at  home  to  remain  there.  As  to  citizens  in  the 
hostile  country,  the  declaration  of  war  imports  a  suspension  of  all 
farther  commerce  with  such  country,  and  obliges  them  to  return, 
nidess  they  would  be  involved  in  all  the  consequences  of  the  hostile 
character.  If  they  wish  to  return,  they  must  do  it  in  a  manner, 
which  does  not  violate  the  laws ;  and  their  property  cannot  be  re- 
moved  with  safety  from  the  enemy  country,  unless  under  tlie  sanc- 
ticm  of  their  own  government. 

"  But  even  if  the  position  were  generally  true,  that  is  contended 
for,  tlie  law  would  never  deem  that  a  reasonable  mode  of  conveying 
property  home,  which  involved  it  in  a  noxious  trade  with  the  jjublic; 
enemy.  That  can  never  be  held  to  be  a  reasonable  mode  of  return- 
ing a  ship  to  the  United  States,  which  involves  her  in  a  traffic  for 
bidden  by  the  laws." 


THE  "  WILLIAM  BAGALAY." 

Supreme  Coukt  of  the  United  States,  1866. 

(5  Wallace,  408.) 

As  to  the  duty  of  an  American  citizen  to  return  home  when  the  United  States 
becomes  involved  in  war  with  the  country  of  his  residence. 

Extract  from  the  jtulgment, — Clifford,  J. : — 

"  The  duty  of  a  citizen  when  war  breaks  out,  if  it  be  a  foreign  war, 
and  he  is  abroad,  is  to  return  without  delay ;  and  if  it  be  a  civil 
war,  and  he  is  a  resident  in  the  rebellious  section,  he  should  leave  it 
as  soon  as  practicable  and  adhere  to  the  regular  established  govern- 
ment. Domicil  in  the  law  of  prize  becomes  an  important  considera- 
tion, because  every  person  is  to  be  considered  in  such  proceedings  as 
belonging  to  that  country  where  he  has  his  domicil,  whatever  may 
be  his  native  or  adopted  country. 

"  Personal  property,  except  snch  as  is  the  product  of  the  hostile 
soil,  follows  as  a  general  rnle  the  rights  of  the  proprietor;  but  if 
suffered  to  remain  in  the  hostile  conntry  after  war  breaks  out,  it 
becomes  impressed  with  the  national  character  of  the  Ijelligerent 


294  EFFECTS    OF   ^VAE   AS   BET^YEEN    EXE]\IIES.       [PART  11. 

where  it  is  situated.  Promptitude  is  ttierefore  justly  required  of 
citizens  resident  in  the  enemy  country,  or  having  personal  property 
there,  in  changing  tlieir  domicil,  severing  tliose  business  relations, 
or  disposing  of  their  effects,  as  matter  of  dutj'  to  their  own  govern- 
ment, and  as  tending  to  weaken  the  enemy.  Presumption  of  tlie  law 
of  nations  is  against  one  who  lingers  in  the  enemy's  country,  and  if 
he  ct)ntinues  there  for  much  length  of  time,  without  satisfactory 
explanations,  he  is  liable  to  be  considered  as  remorant,  or  guilty  of 
culpable  delay,  and  an  enemy,"  ^ 

1  In  tlie  case  of  the  Gray  Jacket,  5  Wallace,  370,  Mr,  Justice  Swayxe,  in  giving 
the  opinion  of  the  court,  said :  "The  only  qualification  of  these  rules  (property 
■coniing  from  the  enemy  country  to  be  condemned)  is  that  Avhen,  upon  breaking  out 
of  hostilities,  or  as  soon  after  as  possible,  the  owner  escapes  with  such  property  as 
he  can  take  with  him,  or  in  good  faith  thus  early  removes  his  property,  with  the 
view  of  putting  it  beyond  the  dominion  of  the  hostile  power,  the  property  in  such 
cases  is  exempt  from  the  liability  which  would  otherwise  attend  it," 

In  the  case  of  Flfty-tvm  Bales  Cotton,  Blatchford's  Prize  Cases,  G04  (1803),  the 
cotton  was  captured  on  a  flat-boat  fastened  to  a  wharf  in  Texas,  and  belonged  to  a 
citizen  of  Xew  York,  who  went  to  Texas  before  the  war  to  collect  debts  due  to  him. 
The  i^roceeds  had  been  invested  in  this  cotton,  with  a  view  to  leave  the  hostile 
country  after  the  breaking  out  of  the  war. 

Mr.  Justice  Xelsox,  in  the  cii'cuit  court  for  Southern  Xew  York  hekhthat  "  the 
only  pretext  for  condemnation  is  that  the  iiroperty  in  question  was  enemy's  pro;)- 
erty,  which  I  think'is  not  sustained.  It  appears  to  me  that  the  claimant  used  all 
diligence  to  collect  his  effects,  with  a  view  to  leave  the  hostile  country,  after  the 
breaking  out  of  the  war,  and  is  brought  fairly  within  the  principle  of  international 
law  that  protects  him." 

In  the  case  of  the  Sarah  Starr  and  Cargo,  Blatchford,  650,  the  same  judge  hold, 
that  after  the  breaking  out  of  war  citizens  of  the  loyal  States  resident  in  the  States 
in  rebellion  should  be  accorded  a  reasonable  time  to  convert  their  property  into 
funds  which  could  be  conveniently  carried,  and  to  withdraw  from  their  business 
connections  in  the  enemy's  country.  To  the  same  effect  the  case  of  the  Jolin  Gil- 
2)in,  Blatchford,  6G1,  in  which  Xelsox,  J.,  overnded  the  decision  of  the  district 
court. 

Mr.  Justice  Xelsox  would  seem  to  I)e  more  lenient  in  this  class  of  cases  than 
the  majority  of  his  colleagues  on  the  supreme  bench.  In  the  Prize  Cases,  he  dis- 
sented from  the  opinion  of  the  majority,  and  asserted  that  there  could  be  no  illegal 
trading  with  the  enemy  prior  to  the  proclamation  of  the  President,  on  the  16th  of 
August,  1861. 

See  further  on  the  removal  of  property  on  the  outbreak  of  war,  the  case  of  the 
Ocean,  5  C.  Robinson,  90  (1804);  and  the  Fresidcnt,  5  C,  liobinson,  277  (1804). 


CHAP.  Il.J  KEilSHAW    ('.  KELSEY.  295 


KERSHAW  y.  KELSEY. 

Supreme  Couiit  of  Massachusetts,  1868. 

(100  Massachusetts  Reports,  561.) 

A  citizen  of  Massachusetts,  residing  in  Mississippi  during  the  civil  war,  leased 
a  plantation  and  planted  it  with  crops;  but  was  driven  away  by  soldiers  of  the 
Confederate  States,  and  returned  to  Massachusetts.  The  lessor  then  took  charge 
of  the  plantation,  harvested  the  crops,  and  delivered  to  the  lessee's  son,  in  Missis- 
sippi, cotton  of  the  value  of  $10,000.  The  cotton  was  shipped  to  tlie  lessee  at  Bos- 
ton by  his  son.     After  the  close  of  the  war,  the  lessor  sued  to  recover  rent,  etc. 

//e/<?,  that,  as  between  lessor  and  lessee,  there  was  no  trading  between  enemies, 
and  that  the  lessor  could  recover  on  the  contract  of  lease.  , 

Judgment, — Gray,  J. : — 

"  The  defendant,  a  citizen  of  Massachusetts,  in  February,  1 864,  in 
Mississippi,  took  from  tlie  plaintiff,  then  and  ever  since  a  citizen  and 
resident  of  Mississippi,  a  lease  for  one  year  of  a  cotton  plantation  in 
that  state,  and  therein  agreed  to  pay  a  rent  of  ten  thousand  dollars, 
half  in  cash,  and  half  '  out  of  the  first  part  of  the  cotton  crop,  which  is 
to  be  fitted  for  market  in  reasonable  time.'  The  lessor  also  agreed  to 
deliver,  and  the  lessee  to  receive  and  pay  the  value  of  the  corn  then 
on  the  plantation.  It  does  not  appear  whether  the  defendant  went  in- 
to Mississippi  before  or  after  the  beginning  of  the  war  of  the  rebellion  ; 
and  there  is  no  evidence  of  any  intent  on  the  part  of  either  jiarty  to 
violate  or  evade  the  laws  or  oppose  or  injure  the  government  of  the 
United  States.  The  defendant  paid  the  first  instalment  of  rent',  took 
possession  of  the  plantation  and  corn,  used  the  corn  on  the  planta- 
tion, provided  it  with  supplies  to  the  amount  of  about  five  thousand 
dollars,  and  planted  and  sowed  it,  but  early  in  Miircli  Avas  driven 
away  by  rebel  soldiers  and  never  returned  to  the  plantation,  except 
once  in  April  following,  after  which  he  came  back  to  JNIassachusetts. 
The  plaintiff  continued  to  reside  on  the  plantation,  raised  a  crop  of 
cotton  there,  and  delivered  it  in  Mississippi  to  the  defendant's  son, 
by  whom  it  was  forwarded  in  the  autunni  of  the  same  year  to  the 
defendant ;  and  he  sold  it  and  retained  the  profits  amounting  to 
nearly  ten  thousand  dollars. 

"Tiie  plaintiff  sues  for  tlie  unpaid  instalment  of  rent  and  the 
value  of  the  corn.  The  claims  made  in  the  other  counts  of  the  decla- 
ration have  b,een  negatived  by  the  special  findings  of  the  jury. 

"The  defendant,  in  his  answer,  denied  all  the  plaintiff's  allegations  ; 


296  EFFECTS    OF    AVAR    AS    BETWEEN   ENEMIES.       [rAlIT  11. 

and  at  the  trial  contended  that  the  lease,  having  been  made  during 
the  civil  war,  was  illegal  and  void,  as  well  by  the  principles  of  inter- 
national law,  as  bj'  the  terms  of  the  act  of  Congress  of  1861,  c.  3,  §  5^ 
and  the  proclamation  issued  by  the  President  under  that  act,  (de- 
claring all  intercourse  with  states  in  rebellion  unlawful),  i   *    *    * 

"The  result  is,  that  the  law  of  nations,  as  judicially  declared, 
pvohibits  all  intercourse  between  citizens  of  the  two  belligerents 
which  is  inconsistent  with  the  state  of  war  between  their  countries  ; 
and  that  this  includes  any  act  of  voluntary  submission  to  the  enemy, 
or  receiving  his  protection  ;  as  well  as  any  act  or  contract  which 
tends  to  increase  his  resources  ;  and  ever}^  kind  of  trading  or  commer- 
cial dealing  or  intercourse,  whether  by  ti-ansmission  of  money  or  goods, 
or  by  orders  for  the  delivery  of  either,  between  the  two  countries, 
directly  or  hidirectly,  or  through  the  intervention  of  third  persons 
or  partnerships,  or  b}'  contracts  in  any  form  looking  to  or  mvolvmg 
such  transmission,  or  bj^  msurances  upon  trade  witli  or  by  the  enemy. 
IJeyond  tlie  principle  of  these  cases  the  prohibition  has  not  been  car- 
ried by  judicial  decision.  The  more  sweeping  statements  m  the  text 
books  are  taken  from  the  dicta  which  we  have  already  examined,  and 
in  none  of  them  is  any  other  example  given  than  those  just  men- 
tioned. At  this  age  of  the  world,  when  all  the  tendencies  of  the  law 
of  nations  are  to  exempt  individuals  and  private  contracts  from  in- 
jury or  restraint  in  consequence  of  war  between  their  governments, 
we  are  not  disposed  to  declare  such  contracts  unlawful  as  have  not 
been  iieretofore  adjudged  to  be  inconsistent  with  a  state  of  war. 

"  The  trading  or  transmission  of  property  or  money  which  is  pro- 
hibited by  international  law  is  from  or  to  one  of  the  countries  at  war. 
An  alien  enemy  residing  in  this  country  may  contract  and  sue  like  a 
citizen.  2.  Kent,  Com.,  63.  When  a  creditor,  although  a  subject  of 
the  enemy,  remahis  in  the  country  of  the  debtor,  or  has  a  known 
agent  there  authorized  to  receive  the  amount  of  the  debt,  thi"oughout 

1  Gray,  J.,  then  reviews  the  authorities  on  the  subject  at  great  length.  The  fol- 
lowing are  the  principal  cases  reviewed  : — 

The  Hoop  ;  The  Indian  Chief ;  Bell  v.  Chapman,lO  Johnson,  ISo;  Eicord  v.  Bet- 
tenham,  1  W.  Blacksfcone,  503;  Hutchinson  v.  Brock,  11  Mass.,  122;  Spurenhnrijh  v. 
Bnnnatyne,  1  H.  «fe  P.,  170;  Potts  y.  Bell;  Antoine  v.  Morshead;  Willisonv. 
Patterson,  1  Moore,  133;  Exposito  v.  Bowden,  7  El.  &  Bl.  703;  Kennetv.  Cham- 
bers, 14  Howard,  38;  Bentzen  v.  Boyle,  9  Cranch,  191;  Prize  Cases,  2  Black.,  03.5; 
The  Rapid;  The  Julia;  The  Emtdous  ;  Brown  v.  United  States  ;  The  Joseph; 
Jecker  \.  Montfiomery  ;  18  Howard,  110:  Hanger  v.  Abbott,  0  Wallace.  ;"532;  The 
Ouachita  Cotton,  0  Wallace,  .')21;  United  Statesv.  Lane,  18  Wallace,  19.5;  McKeev. 
United  States,  8  Wallace,  100;  Gmwr>/r/ v.  Wuddingt on,  16  Johnson,  88  ;  Alexan- 
der's Cotton,  2  Wallace,  404;  Ex  parte  Boussmaker,  13  Ves.,  71 ;  Coolidf/e  v.In;/lce, 
13  Mass.,  20;  Patonv.  Nichols,  3Wheaton,  204;  Mussony.  Fales,  10  Mass.,  332; 
Capen  v.  Barrows,  1  Grey,  380. 


CHAP.  II.]  KERSHAW   V.  KELSEY.  297 

the  war,  ixiyment  then  to  such  creditor  or  liis  agent  can  in  no  respect 
be  construed  into  a  violation  of  the  duties  imposed  by  a  state  of  war 
U[)on  the  debtor;  it  is  not  made  to  an  enemy,  in  contemplation  of 
international  or  municipal  law ;  and  it  is  no  objection  that  the  agent 
may  possibly  remit  the  money  to  his  principal  in  the  enemy's  coun- 
try;  if  he  should  do  so,  the  offence  would  be  imputable  to  him,  and 
not  to  the  person  paying  him  the  money.  ( Com.  v.  Penn.,  Peters,  C. 
C,  496 ;  Denniston  v.  Imbrie^  3  Wash.  C.  C,  396 ;  Ward  v.  Smith,  7 
Wall.,  447;  Buchanan  v.  Cury,  19  Johns.,  137.) 

"The  same  reasons  cover  an  agreement  made  in  the  enemy's  terri- 
tory to  pay  money  there,  out  of  funds  accruing  there,  and  not  agreed 
to  be  transmitted  from  within  our  own  territory ;  for,  as  was  said  by 
the  Supreme  Court  of  New  York — the  last  case  cited,  '  This  rule  is 
founded  in  public  policy,  which,  forbids,  during  war,  that  money  or 
other  resources  shall  be  transferred  so  as  to  aid  or  strengthen  our 
enemies.  The  crime  consists  in  exporting  the  money  or  property,  or 
placing  it  in  the  power  of  the  enemy. 

"  The  lease  now  m  question  was  made  within  the  rebel  territory 
where  both  parties  were  at  the  time,  and  would  seem  to  have  con- 
temi)lated  the  continued  residence  of  the  lessee  upon  the  demised 
in'emises  throughout  the  term.  Xo  agreement  appears  to  have  been 
made  as  part  of  a  contract  contemporaneously  with  the  lease,  that 
the  cotton  crop  should  be  transported,  or  the  rent  sent  back,  across 
tlie  line  between  the  belligerents,  and  no  contract  or  communication 
appears  to  have  been  made  across  that  line,  relating  to  the  lease,  the 
deliveiy  of  possession  of  the  premises  or  of  the  corn,  or  the  payment 
of  the  rent  of  the  one  or  the  value  of  the  other.  The  subsequent  for- 
warding of  the  cotton  by  the  defendant's  son  from  Mississippi  to 
Massachusetts  may  have  been  unlawful ;  but  that  cannot  affect  the 
validity  of  the  agreements  contained  in  the  lease.  Neither  of  these 
agreements  involved  or  contemplated  the  transmission  of  money  or 
property,  or  other  communication,  between  the  enemy's  territory  and 
our  own.  We  are  therefore  unanimously  of  opinion  that  they  did 
not  contravene  the  law  of  nations  or  the  public  acts  of  the  govern- 
ment, even  if  the  plantation  was  within  the  enemy's  lines ;  and  that 
the  plaintiff,  upon  the  case  reported,  is  entitled  to  recover  the  unpaid 
rent,  and  the  value  of  the  corn. " 


298  EFFECTS  OF  WAii  AS  BET^VEE^'  ene:mies.      [part  u. 


UXITED  STATES  v.  GROSSMAYER. 

SUPKEME  CoUUT  OF    THE  UxiTED  StaTES,  1869. 

(  9  Wallace,  72.) 

A  merchant  residing  in  New  York,  could  not  legally  transmit  orders  by  a  third 
person  to  his  agent  in  Georgia,  during  the  civil  war.  Held,  that  all  acts  of  the 
agent,  in  carrying  out  such  orders,  in  dealing  with  the  property  or  debts  of  his 
principal,  were  null  and  void. 

This  case  was  an  a^Dpeal  from  the  Court  of  Claims. 

Elias  Einstein,  a  resident  of  Macon,  Georgia,  was  indebted,  when 
the  late  rebellion  broke  out,  to  Grossmayer,  a  resident  of  Xew  York, 
for  goods  sold  and  money  lent,  and  while  the  war  was  in  progress  a 
correspondence  on  the  subject  was  maintained  through  the  medium 
of  a  third  person,  who  passed  back  and  forth  several  times  between 
3Iacon  and  Xew  York.  The  communication  between  the  parties  re- 
sulted in  Grossmayer  requesting  Einstein  to  reiuit  the  amount  due 
him  in  money  or  sterling  exchange,  or,  if  that  were  not  possible,  to 
mvest  the  sum  m  cotton  and  hold  it  for  him  until  the  close  of  the 
war. 

In  pursuance  of  this  direction — and,  as  it  is  supposed,  because 
money  or  sterlhig  exchange  could  not  be  transmitted — Einstein  pur- 
chased cotton  for  Grossmayer,  and  informed  him  of  it ;  Grossmayer 
exi>vess'ing  himself  satisfied  tcit/i  the  arran<jement.  The  cotton  was 
afterwards  shipped  at  Grossmayer's  request  to  one  Abraham  Eins- 
tein, at  Savannah,  who  stored  it  there  in  his  own  name,  in  order  to 
prevent  its  seizure  by  the  rebel  authorities.  It  remained  in  store  in 
this  manner  until  the  capture  of  Savannah,  in  December,  1804,  by 
the  armies  of  the  United  States,  when  it  was  reported  to  our  military 
forces  as  Grossmayer's  cotton,  and  taken  by  them  and  sent  to  Xew 
York  and  sold. 

Grossmayer  now  preferred  a  claim  in  the  Court  of  Claims  for  the 
residue  of  the  proceeds,  asserting  that  he  was  within  the  protection 
of  the  Captured  and  Abandoned  Proi)erty  Act. 

That  court  considering  tliat  the  purchase  by  Elias  Einstem  fi  r 
Grossmayer  was  not  a  violation  of  the  war  intercourse  acts  set  forth 
in  the  preceding  case,  decided  that  he  was  so,  and  gave  judgment 
in  liis  favor.     The  United  States  appealed. 

Judgment, — Davis.  J. : — 


CilAP.  11. ]  UNITED    STATES    V.   GUOSSMAYER.  299 

"  Grossmayer  insists  that  he  is  within  tlie  protection  of  the  Captured 
and  Abandoned  Property  Act,  but  it  is  hard  to  see  on  what  ground 
he  can  base  this  claim  for  protection.  It  was  natural  that  Grossmayer 
should  desire  to  be  paid,  and  creditable  to  Einstein  to  wish  to  dis- 
charge his  obligation  to  him,  but  the  same  thing  can  be  said  of  very 
many  persons  who  were  similarly  situated  during  the  war,  and  if  all 
persons  in  this  condition  had  been  allowed  to  do  what  was  done  in 
this  case  it  is  easy  to  see  that  it  would  have  produced  great  embar- 
rassment and  obstructed  very  materially  the  operations  of  the  army. 
It  has  been  found  necessary,  as  soon  as  war  is  commenced,  that 
business  intercourse  should  cease  between  the  citizens  of  the  respec- 
tive parties  engaged  in  it,  and  this  necessity  is  so  great  that  all 
writers  on  public  law  agree  that  it  is  unlawful,  without  any  (express 
declaration  of  the  sovereign  on  the  subject. 

"  But  Congress  did  not  wish  to  leave  any  one  in  ignorance  of  the 
effect  of  war  in  this  regard,  for  as  early  as  the  13th  of  July,  1861,  it 
passed  a  Non-intercourse  Act,  which  proliil)ited  all  commercial 
intercourse  between  the  States  in  insurrection  and  the  rest  of  the 
United  States.  It  is  true  the  President  could  allow  a  restricted  trade, 
if  he  thought  proper ;  but,  in  so  far  as  he  did  allow  it,  it  had  to  be 
conducted  according  to  regulations  prescribed  by  the  Secretary  of 
the  Treasury. 

"  There  is  no  pretence,  however,  that  this  particular  transaction 
was  authorized  by  any  one  connected  with  the  Treasury  Department, 
and  it  was,  therefore,  not  only  inconsistent  with  the  duties  growing 
out  of  a  state  of  war,  but  in  open  violation  of  a  statute  on  the  sub- 
ject. 

"A  prohibition  of  all  intercourse  with  an  enemy  during  the  war 
affects  debtors  and  creditors  on  either  side,  equally  with  those  who 
do  not  bear  that  relation  to  each  other.  We  are  not  disposed  to  deny 
the  doctrine  that  a  resident  in  the  teri'itory  of  one  of  the  belligerents 
may  have,  in  time  of  war,  an  agent  residing  in  the  territory  of  the 
other,  to  whom  his  debtor  could  pay  his  debt  in  money,  or  deliver 
to  him  property  in  discharge  of  it,  but  in  such  a  case  the  agency 
must  have  been  created  before  the  war  began,  for  there  is  no  power 
to  appoint  an  agent  for  any  purpose  after  hostilities  have  actually 
commenced,  and  to  this  effect  are  all  the  authorities.  The  reason 
why  this  cannot  be  done  is  ol)vious,  for  while  tlie  war  lasts  nothing 
wliicli  depends  on  commercial  intercourse  is  permitted. 

"  In  this  case,  if  Einstein  is  to  be  considered  as  the  agent  of  Gross- 
mayer to  buy  the  cotton,  the  act  appointing  him  was  illegal,  because 
it  was  done  by  means  of  a  direct  communication  through  a  messenger 
who  was  in  some  manner  not«stated  in  the  record  able  to  pass,  during 


300  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.  [PAIIT  II, 

the  war,  between  Macon  and  New  York.  It  was  not  necessary  to 
make  the  act  unlawful  that  Grossmayer  should  have  connnunicated 
personally  with  p]instein.  The  business  intercourse  through  a  middle- 
man, Avhich  resulted  in  establishing- tlie  agency,  is  equally  within  the 
condemnation  of  the  law. 

"  Besides,  if,  as  is  conceded,  Grossmayer  was  prohibited  from  ti'ad- 
ing  directly  with  the  enemy,  how  can  the  purchase  in  question  be 
treated  as  lawful  when  it  was  made  for  him  l>y  an  agent  appointed 
after  bis  own  disability  to  deal  at  all  with  the  insurgents  was  created '? 

"  It  is  argued  that  the  purchase  by  Einstein  was  ratified  by  Gross- 
mayer, and  that  being  so,  the  case  is  relieved  of  difficulty  ;  but  this 
is  a  mistaken  view  of  the  principle  of  ratification,  for  a  transaction 
originally  unlawful  cannot  be  made  any  better  by  being  ratified. 

'^  In  any  as[)ect  of  this  case,  \\hether  the  relation  of  debtor  and 
creditor  continued,  or  was  changed  to  that  of  principal  and  agent, 
the  claimant  cannot  recover. 

"As  he  was  prohibited  during  the  war  from  having  any  dealings 
with  Einstein,  it  follows  that  nothing  which  both  or  either  of  them 
did  in  this  case  could  have  the  effect  to  vest  in  him  the  title  to  the 
cotton  in  question, 

"  Xot  being  the  owner  of  the  property  he  has  no  claim  against  the 
United  States. 

"  The  judgment  of  the  Court  of  Claims  is  reversed,  and  tlie  cause 
is  remanded  to  that  court  with  directions  to  enter  an  order 

"  Dismissing  the  petition." 


THE  "  SEA  LION." 

Supreme  Court  of  tue  United  States,  1866. 

(5  Wallace,  G30.) 

The  act  of  Congress  of  .July  13,  1861,  authorizing  the  President  to  license  certain 
commercial  intercourse  witli  tlie  States  in  rebellion  did  not  contemplate  the  exer- 
cise of  that  authority  hy  sulioniinate  officers  of  the  executive  department  w  ithout 
the  express  order  of  the  President. 

An  act  of  Congress  passed  during  the  late  rebellion  (.July  13ih, 
1861),  prohibited  all  commercial  intercourse  between  the  inhabitants 
of  any  State  which  the  President  might  declare  in  a  state  of  insur- 
rection, and  the  citizens  of  the  rest  of  the  United  States;  and 
enacted  that  all  merchandise  coming  from  such  territory  into  other 


CHAP.  TI.]  THE    "  SEA    LION."  301 

ports  of  the  United  States  with  the  vessel  conveying  it  sliould  be 
forfeited. 

The  act  provided,  however,  that  "  the  President''  might  "in  A/.s 
discretion  license  and  permit  commercial  hitercourse''''  with  any  such 
part  of  a  State  the  iidiabitants  of  which  had  been  so  declared  in  a 
state  of  insurrection,  "in  sucli  articles,  and  for  such  time,  and  by 
sucli  persons,  as  he,  in  lils  discretion,  may  think  most  conducive  to 
the  pul)lic  interest."  And  that,  "such  nitercourse,  so  far  as  by  Irhn 
licensed,  shall  be  conducted  and  carried  on  only  in  pursuance  of  rules 
and  regulations  presci'ibed  by  the  seci-etary  of  the  treasury." 

The  President  having  soon  after  declared  several  Southern  States, 
and  among  them  Alabama,  in  a  state  of  insurrection,  and  the  Secre- 
tary of  the  Treasury  having  issued  a  series  of  commercial  regula- 
tions on  tlie  subject  of  intercourse  with  them,  Brott,  Davis  &,  Slions, 
a  counnercial  firm  of  New  Orleans,  obtained  from  Mr.  G.  S.  Den- 
nison,  special  agent  of  the  Treasury  Department,  and  acting  Col- 
lector of  Customs  at  New  Orleans,  a  paper,  dated  February  IGth,  1863, 
as  follows : 

"The  United  States  military  and  other  authorities  at  Xew  Orleans  permit  cotton 
to  be  received  here  from  beyond  the  United  States  military  lines,  and  such  cotton 
is  exempt  from  seizure  or  confiscation.  An  order  is  in  my  hands  from  Major- 
(renend  Banks  approving  and  directing  this  policy.  The  only  condition  imposed 
is  that  cotton  or  other  produce  must  not  be  bought  with  specie.  All  cotton  or 
o^ier  produce  brouglit  liither  from  tlie  Confederate  lines  by  Brott,  Davis  &  Shons 
will  not  be  interfered  with  in  any  manner,  and  they  can  ship  it  direct  to  any  for- 
eign or  domestic  jiort." 

This  paper  %oas  indorsed  hy  Rear- Admiral  Farra<p(t.,  in  com- 
mand of  the  hlockaduKj  force  on  that  coast.,  ^'•approved''  The  IJear- 
Admiral  had  given  also  the  following  instructions  to  his  commanders 
of  the  Mobile  blockade  : 

"  Should  any  vessel  come  out  of  Mobile  and  deliver  itself  up  as  the  property  of  a 
Union  man  desiring  to  go  to  New  Orleans,  take  possession  and  send  it  into  New 
Orleans  for  an  investigation  of  the  facts,  and  if  it  be  shown  to  be  as  represented, 
tlie  vessel  will  be  considered  a  legal  trader,  under  the  general  order  permitting  all 
cotton  and  other  produce  to  come  to  New  Orleans." 

With  this  paper  of  the  collector  of  New  Orleans  in  their  hands, 
Brott,  Davis  &  Shons  had,  through  their  agents  in  Mobile,  sevent}'- 
two  bales  of  cotton  shipped  at  that  port  on  the  vessel  Sea  Lion  to 
be  carried  to  New  Orleans. 

The  vessel  was  captured  by  the  blockading  fleet  off  Mobile,  and 
taken  to  Key  AVest,  and  there  libeled  as  prize.     The  district  court 


302  EFFECTS    OF    \VAR    AS   BETWEEN    ENEMIES.  [PART  II. 

condemned  the  property,  and  an  appeal  was  taken  to  the  Snin-enie 
Court. 

;Mr.  Justice  Swayxe,  in  dehvering  the  opmion  of  the  court,  said  as 
to  the  question  of  license : — 

"The  effect  of  this  paper  depends  upon  the  authority  under  which 
it  was  issued.  The  fifth  section  of  the  act  of  July  13th,  1861,  author- 
ized the  President  to  proclaim  any  State  or  part  of  a  State  in  a 
condition  of  insurrection,  and  it  declared,  that  thereupon  all  com- 
mercial intercourse  between  that  territory  and  the  citizens  of  the 
rest  of  the  United  States,  should  cease  and  be  unlawful,  so  long  as 
the  condition  of  hostility  should  contuuie,  and  that  all  goods  and 
merchandise  coming  from  such  territory,  into  other  parts  of  the 
United  States,  and  all  proceeding  to  such  territory  by  land  or  water, 
and  the  vessel  or  vehicle  conveying  them,  or  conveying  persons  to  or 
from  such  territory,  should  be  forfeited  to  the  United  States  :  Pro- 
vided, hon-ecer,  'That  the  President  may,  in  his  discretion,  license 
and  permit  connnercial  intercourse  with  any  such  part  of  said  State 
or  section,  the  inhabitants  of  which  are  so  declared  in  a  state  of  in- 
surrection in  such  articles,  and  for  such  time,  and  by  such  persons, 
as  he,  in  his  discretion,  may  think  most  conducive  to  the  public 
interest;  and  such  intercourse,  so  far  as  by  him  licensed,  shall  be 
conducted  and  carried  on  only  in  pursuance  of  rules  and  regulations 
prescribed  by  the  Secretary  of  the  Treasury.' 

"  There  is  no  other  statutory  provision  bearing  upon  the  subject 
material  to  be  considered. 

"On  the  IGth  day  of  August,  1801,  the  President  issued  his  procla- 
mation declaring  the  inhabitants  of  the  rebel  States,  including 
Alabama,  to  be  in  a  state  of  insurrection. 

"On  the  'iStli  of  the  same  month  the  Secretary  of  the  Treasury, 
pursuant  to  the  provisions  of  the  act  referred  to,  issued  a  series  of 
regulations  upon  the  subject  of  commercial  intercourse  with  those 
States. 

"These  regulations  continued  in  force  until  the  31st  of  March, 
1863,  when  a  new  series  were  issued  by  the  same  authority.  The 
former  were  in  force  when  the  alleged  license  bears  date ;  the  latter 
when  the  vessel  and  cargo  left  Mobile  and  when  they  were  captured. 
It  is  unnecessary  to  analyze  them.  It  is  sufficient  to  remark  that 
they  contain  nothing  which  affords  the  slightest  pretext  for  issuing 
such  a  paper.  It  is  in  conflict  with  rules  and  requirements  contained 
in  both  of  them.  It  finds  no  Avarrant  in  the  statute.  The  statute 
prescribes  that  the  President  shall  license  the  trade.  The  only 
function  of  the  Secretary  was  to  establish  the  rules  by  which  it 
should  be  regulated,  when  thus  permitted.     The  order  of  General 


C;iAI>.  1!.]  FURTADO    V.  RODGERS.  303 

Banks  is  not  produced.  If  it  were  as  comprehensive  as  the  special 
agent  assumed  it  to  be,  it  covered  shipments  to  New  Orleans  from 
Wilming-ton,  Charleston,  and  all  points  in  the  rebel  States.  It  em- 
braced merchandise,  coming  alike  from  places  within,  and  places  be- 
yond his  military  lines.  With  respect  to  the  latter  it  was  clearly 
void.  The  President  only  could  grant  such  a  license.  Mobile  was 
then  in  possession  of  the  enemy.  The  vessel  and  cargo  bore  the 
stamp  of  the  enemy's  property.  The  paper  relied  upon  was  a 
nullity,  and  gave  them  no  protection.  They  were  as  much  liable  to 
capture  and  condeinnation  as  any  other  vessel  or  cargo,  leaving  a 
blockaded  port  and  coming  within  reach  of  a  blockading  vessel. 
"  The  decree  below  was  rightly  rendered,  and  it  is 

«  Affirmed." 

Mr.  Justice  Grier  : — 

"  I  do  not  concur  in  this  judgment.  The  vessel  went  out  of  Mobile 
by  permission  of  the  commander  of  the  blockade  there.  To  con- 
demn such  property  would  be  a  violation  of  good  faith.  Xo  English 
court  has  ever  condemned  under  such  circumstances." 


FURTADO  V.  RODGERS. 

Common  Pleas,  1802. 

(3  Bos.  cfc  Pull.  191.) 

An  insurance  effected  in  Great  Britain  on  a  French  ship  previous  to  the  com- 
mencement of  hostilities  between  Great  Britain  and  France  does  not  cover  a  loss 
by  British  capture. 

This  was  the  case  of  the  ship  Petronelli,  which  sailed  from  Bayonne 
in  France,  Oct.,  1792,  for  Martinique  insured  in  an  English  company, 
the  pohcy  dating  19th  Oct.,  1792.  The  next  year,  while  still  at  Mar- 
tini(jue  the  war  between  France  and  England  broke  out ;  and  the 
island  of  Martinique  with  all  the  shipping  in  the  harbors  was  cap- 
tured by  the  English.  After  the  peace  of  Amiens  in  1802,  the  owner 
of  the  ship  brought  suit  in  Common  Pleas  in  England,  to  recover 
the  insurance  on  the  ship. 

Judgment, — Lord  Alvanley,  C.  J. : — 

"  As  it  is  of  infinite  importance  to  the  parties  that  this  case  should 
be  decided  as  speedily  as  possible,  and  as  we  entertain  no  doubts 
upon  the  subject,  we  think  it  right  to  deliver  the  judgment  of  the 
court  without  any  further  delay  ;  at  the  same  time  considering  (he 


304  EFFECTS   OF   ^VAR    AS    BETWEEN   ENEMIES.  [rART  II. 

magnitude  of  the  question  we  shall  allow  the  parties  to  convert  this 
case  into  a  special  verdict,  in  order  that  the  opinion  of  the  highest 
court  in  this  kingdom  may  be  taken,  if  it  should  he  thought  nec- 
essary. There  are  two  questions  for  our  consideration  :  1st,  whether 
it  be  lawful  for  a  British  subject  to  insure  an  enemy  from  the 
effect  of  capture  made  by  his  own  government  ?  :2dly,  whether,  if 
that  be  legal,  the  insurance  in  this  case  having  been  made  previous 
to  tlie  commencement  of  hostilities  will  make  any  difference  ?  As 
to  the  first  point,  it  has  Ijeen  understood  for  some  years  to  have 
been  the  opinion  of  all  Westminster-llall,  and  I  believe  of  the  nation 
at  large,  that  such  insurances  are  not  strictly  legal  or  capable  of 
being  enforced  in  a  court  of  justice. 

"  The  cases  upon  the  subject  are  all  brought  into  a  small  compass 
in  the  two  valuable  books  of  Mr.  Park  and  my  Brother  Marshall. 
Mr.  Park  seems  to  consider  the  cases  of  Brandon  v.  JVesbitt  and 
JBrist<nc  v.  Toicers  as  having  decided  the  point ;  but  after  looking 
very  accurately  into  all  the  cases,  I  am  ready  to  admit  that  there  is 
no  direct  determination.  The  above  two  cases  proceeded  on  the 
short  ground  of  alienage,  which  was  sufficient  to  support  the  decision 
of  the  Court  without  entering  into  the  other  question  ;  and  I  do  not 
think  the  latter  words  of  Lord  Kenyon  in  Brandon  v.  JS'eshitt^ 
applied  as  they  are  to  the  case  of  Pdcord  v.  Bettenhain,  support 
the  inference  which  has  been  drawn  by  my  Brother  Marshall,  the 
Law  of  Insurance,  pp.  37,  600,  viz.,  tliat  his  Lordship  thought  that  a 
policy  effected  previous  to  the  war  might  be  sued  upon  in  the  event 
of  peace,  even  though  the  loss  sustained  by  the  assured  arose  from 
British  caj)ture.  It  is  well  known  that  for  a  considerable  time, 
not  only  some  politicians  entertained  an  opinion  that  insurances  on 
enemy's  property  was  beneficial,  but  tliat  a  great  Judge  went  so  far 
as  to  try  causes  in  which  this  point  directly  appeared,  and  permitted 
foreigners  in  their  own  names,  and  for  their  own  benefit  during  the 
war,  to  recover  on  policies  of  insurance  on  foreign  goods  against 
British  capture.  The  opinion  of  that  learned  Judge,  as  to  the  policy 
of  such  insurances,  is  well  known,  and  it  was  supposed  he  would 
not  liave  sanctioned  them  unless  his  opinion  in  point  of  law  had 
been  equally  favorable.  But  we  have  now  the  best  evidence  that 
his  sentiments  in  that  respect  were  different  from  what  they  were 
supposed  to  be.  Though  he  did  try  causes  upon  such  insurances, 
he  always  entertained  doubts  upon  the  law,  and  endeavored  to 
keep  out  of  sight  a  question  which  might  oblige  him  to  decide  against 
what  he  thought  for  the  benefit  of  tlie  country.  This  takes  off 
materially  from  the  effect  of  those  cases  which  have  been  cited,  to 
induce  a  supj)osition  that  the  law  of  England  had  tolerated  such 


CHAP,  n.]  FURTADO  V.   RODGERS.  300 

insurances.  How  far  it  is  consistent  with  fi-ood  faith,  after  so  lont^ 
an  acquiescence,  to  set  up  a  defence  which  tlie  foreigner  may  say  he 
had  no  reason  to  expect,  is  a  question  for  the  decision  of  defendant 
and  not  tliat  of  the  Court.  We  can  only  say,  that  ahliougli  many 
persons  have  recovered  in  sucli  actions  it  is  equally  true  that  douhts 
have  been  entertained  by  many  persons  as  to  their  right  to  recover, 
and  that  most  of  those  who  were  informed  upon  the  subject  Avere 
firmly  persuaded  that  the  objection  might  have  been  made  with 
success.  This  affords  a  sufficient  vindication  to  the  courts  of  this 
country  in  now  deciding  this  point  against  a  foreigner. 

"Tn  174S  an  act,  21  (tco.  2,  c.  4,  passed  prohibiting  the  insurance 
of  French  ships  and  goods  during  tlu;  war;  this  was  at  least  a  legis- 
lative declaration  of  the  impolicy  of  such  insurances  at  that  time. 
From  the  expiration  of  that  act  to  the  passing  of  the  3:5  Geo.  3,  c.  27, 
s.  4,  no  legislative  interference  upon  the  subject  ever  took  place, 
and  previous  to  the  last  mentioned  act  the  policy  in  question  was 
effected.  By  the  terms  of  the  policy,  the  underwriters  certainly  un- 
dertake to  indemnify  the  plaintiff  against  all  captures  and  detentions 
of  princes,  without  any  exception  hi  respect  of  the  acts  of  the  gov- 
ernment of  their  own  nation.  The  question  then  is,  whether  the 
law  does  not  make  that  exception,  and  whether  it  be  competent  to  an 
English  underwriter  to  indemnify  persons  who  may  be  engaged  in 
war  with  his  own  sovereign  against  the  consequences  of  that  war  ? 
We  are  all  of  opinion,  that  on  the  principles  of  the  English  law,  it  is 
not  competent  to  any  subject  to  enter  into  a  contract  to  do  anything 
which  may  be  detrimental  to  the  interests  of  his  own  country;  and 
that  such  a  contract  is  as  much  prohibited  as  if  it  had  been  ex[)ressly 
forbidden  by  an  act  of  parliament.  It  is  admitted  that  if  a  man  con- 
tract to  do  a  tiling  which  is  afterwards  prohibited  by  act  of  j^arlia- 
ment,  he  is  not  bound  by  his  contract.  This  was  expressly  laid  down 
in  Breioster  v.  Kitchell,  1  Salk.,  198.  And  on  the  same  principle, 
where  liostilities  commence  betAveen  the  country  of  the  underwriter 
and  the  assured,  the  former  is  forbidden  to  fulfil  his  contract.  With 
respect  to  the  expediency  of  these  insurances,  it  seems  only  necessary 
to  cite  a  single  line  from  Bynkershoek  (Quaes.  Juris.  Pub.  lib.  1,  c. 
21)  and  part  of  a  passage  from  Valin,  p.  32.  The  former  says, 
'■  ITost i ton pericida  in  se  suscipere  quid  est  cdiud  qucun  eorum  commercia 
marlti ina  pmmovere^  and  the  latter,  speaking  of  the  conduct  of  the 
English  during  the  war  of  1756,  who  permitted  these  insurances, 
says,  '  The  consequence  was,  that  one  part  of  that  nation  restored  to 
us  by  the  effect  of  insurance,  what  the  other  took  from  us  by  the 
rights  of  war.'  Lord  Plardwicke  indeed,  in  HencMe  v.  The  Royal 
Exchange  Assurance  Company^  1  Ves.,  320,  uses  these  words:  'Mo 
20 


S06  EFFECTS    OF    WAR   AS    BETWEEN   ENEMIES.         [PAKT  II. 

determination  has  been  that  insurance  on  enemies'  ships  during  the 
war  is  unlawful ;  it  might  be  going  too  far  to  sa}^  all  trading  \Anth 
enemies  is  unlawful,  f(H"  that  general  doctrine  would  go  a  great  way, 
even  where  only  English  goods  are  exported,  and  none  of  the  enemies' 
imported,  which  may  be  very  beneficial.  1  do  not  go  on  a  founda- 
tion of  that  kind,  and  there  have  been  several  insurances  of  this  sort 
during  the  war  which  a  determination  upon  that  point  might  hurt.' 
This  however  is  but  a  doubtful  opinion  as  to  the  legality  of  such  in- 
surances, and  not  very  favorable  to  them.  In  Planche  v.  Fletcher^ 
Lord  Maxsfield  is  certainly  reported  to  have  said,  '  It  is  indifferent 
whether  the  goods  were  English  or  French,  the  risk  insured  extends 
to  all  captures,'  which  seems  at  first  to  go  a  great  way  towards  giving 
effect  to  insurances  against  British  cajiture.  But  we  must  suppose 
this  to  have  been  said  because  the  defendant  did  not  press  the  objec- 
tion; and  if  the  party  acquiesced,  the  expression  gives  no  more 
weight  to  the  case  than  belongs  to  any  of  the  other  cases  which  have 
been  cited,  such  as  Bennoa  v.  Woodbridge^  Eden  v,  Parkinson,  and 
Tijson  V.  Gurney,  in  which  the  question  was  not  raised  at  all.  On 
the  other  hand,  the  cases  of  Brandon  v.  Xeshitt  and  Bristoio  v. 
Tomer s  certainly  proceed  on  the  ground  of  alienage.  There  is  no 
express  declaration  therefore  of  the  Court  of  King's  Bench,  either 
for  or  against  the  legality  of  such  insurances,  and  the  question  comes 
now  to  be  decided  for  the  first  time.  We  are  ail  of  opinion  that  to 
insure  enemies'  property  was  at  the  common  law  illegal,  for  the 
reasons  given  by  the  two  foreign  jurists  (Bynkershoek  and  Valin)  to 
whom  I  have  referred.  If  this  be  so,  a  contract  of  this  kind  entered 
into  previous  to  the  commencement  of  hostilities  must  be  equally 
unavaihng  in  a  court  of  law,  since  it  is  equally  injurious  to  the  in- 
terests of  the  country  ;  for  if  such  a  contract  could  be  supported,  a 
foreigner  might  insure  previous  to  the  war  against  all  the  evils  in- 
cident to  war.  But  it  is  said  that  the  action  is  suspended,  and  that 
the  indemnity  comes  so  late  that  it  does  not  strengthen  the  resources 
of  the  enemy  during  the  Avar.  The  enemy  however  is  very  little  in- 
jured by  captures  for  which  he  is  sure  at  some  period  or  other  to  be 
repaid  by  the  underwriter.  Since  the  case  of  Bdl  v.  Potts,  it  has 
been  universally  understood  that  all  commercial  intercourse  Avith 
the  enemy  is  to  be  considered  as  illegal  at  common  laAV  [though 
previous  to  that  case  a  very  learned  judge  (Mr.  Justice  Buller,  in  Bell 
V.  Gitson,  1  Bos.  &  Pull.,  345)  appears  to  haA-e  entertained  doubts  on 
that  subject],  and  that  consequently  all  insurances  founded  on  such 
intercourse  are  also  illegal.  Why  are  they  illegal  ?  Because  they 
are  in  contraA-ention  of  his  Majesty's  object  in  making  war,  Avhich 
is  by  the  capture  of  the  enemies'  property,  and  by  the  prohibition  of 


CHAP.  II.]  FURTADO    V.  KODGERS.  307 

any  beneficial  intercourse  between  theiu  and  his  own  subjects  to 
cripple  their  commerce.  The  same  reasoning  which  influenced  tlie 
Court  of  King's  Bench  hi  their  decision  in  Bell  against  Potts,  seems  de- 
cisive in  the  present  case.  For  it  being  determined  tliat  during  war 
all  commercial  intercourse  with  the  enemy  is  illegal  at  common  law, 
it  follows  that  whatever  contract  tends  to  protect  the  enemy's  prop- 
erty from  the  calamities  of  war,  though  effected  antecedent  to  the 
war,  is  nevertheless  illegal.  '  It  has  been  supposed  that  the  doctrine 
which  has  prevailed  respecting  ransom  bills  tends  to  favor  these  in- 
surances ;  but  no  action  was  ever  maintained  upon  a  ransom  bill  in 
a  court  of  common  law  until  the  case  of  Rlcord  v.  Beftmliam,  3  Bur., 
1734;  1  Bl.,  5G3,  and  I  have  the  authority  of  Sir  Wm.  Scott  for  saying, 
that  in  the  Admiralty  Court  the  suit  was  always  instituted  by  the 
hostage.  The  case  of  Ricord  v.  Bettenham^  however,  certainly  tended 
to  show  that  such  an  action  might  be  maintained  in  the  courts  of 
common  law  at  the  suit  of  an  alien  enemy.  In  consequence  of  this, 
a  similar  action  was  brought  in  Cormi  v.  Blackburn  (Doug.,  641),  and 
after  argument,  the  Court  of  King's  Bench  held  that  it  might  be 
sustained.  But  in  Anthon  v.  Fisher  (Doug.,  C49,  050,  in  notes),  the 
contrary  was  expressly  determined  upon  a  writ  of  error  in  the  Ex- 
chequer Chamber.  I  forbear  to  enter  into  the  arguments  suggested 
at  the  bar  in  favor  of  the  defendant,  that  the  law  will  not  enforce  a 
contract  founded  on  a  transaction  detrimental  to  the  public  policy 
of  the  state.  The  ground  upon  which  we  decide  this  case  is,  that 
when  a  British  subject  insures  against  captures,  the  law  infers  that 
the  contract  contains  an  exception  of  captures  made  by  the  govern- 
ment of  his  own  country ;  and  that  if  he  had  expressly  insured  against 
British  capture,  such  a  contract  would  be  abrogated  by  the  law  of 
England.  With  respect  to  the  argument  insisted  upon  by  way  of 
answer  to  the  public  inconvenience  likely  to  arise  from  permitting 
such  contracts  to  be  enforced,  viz.,  that  all  contracts  made  with  an 
enemy  enure  to  the  benefit  of  the  King  during  the  war,  and  that  he 
may  enforce  payment  of  any  debt  due  to  an  alien  enemy  from  any  of 
his  subjects,  we  think  it  is  not  entitled  to  much  weight.  Such  a 
course  of  proceeding  never  has  been  adopted ;  nor  is  it  very  probable 
that  it  ever  will  be  adopted,  as  well  from  the  difficulties  attending  it, 
as  the  disinclination  to  put  in  force  such  a  prerogative.  The  plaint- 
iff, I  am  sorry  to  say,  is  not  entitled  to  a  return  of  premium,  because 
the  contract  was  legal  at  the  time  the  risk  commenced,  and  was  a 
good  insurance  against  all  other  losses  but  that  arising  from  capture 
by  the  forces  of  Great  Britain. 

"  Judgment  for  the  defendant." 


308  EFFECTS    OF    WAII    AS   BETWEEN    EXE:\IIES.  [pAUT  U. 


AXTOIXE  V.  MORSIIEAD. 
CoMMox  Pleas,  1815. 

(()  Taunton,  237.) 

A  British  prisoner  in  France  drew  five  bills  of  exchange  on  his  son  in  England 
— the.  defendant — made  payable  to  certain  of  his  fellow-prisouers,  also  British  sulv 
jects.  The  payees  endorsed  the  bills  to  the  plaintiff,  a  French  baiiker  at  Verdun, 
and  thej'  were  accepted  by  the  defendant. 

In  a  suit,  after  the  close  of  the  war,  held,  that  the  plaintiff  could  recover  on  the 
bills. 

This  was  an  action  upon  five  bills  of  exchange,  all  drawn  by  the 
father  of  the  defendant,  a  British  subject,  on  the  12th  of  September, 
1806,  while  he  was  detained  a  prisoner  at  Verdun  in  France  during 
the  late  war  with  that  country,  payable,  some  to  Tyndall,  some  to 
Estwicke,  both  British  subjects  in  like  manner  detained  prisoners 
there,  at  one  year  after  date,  indorsed  to  the  plaintiff,  who  was  a 
French  subject  and  a  banker  at  Verdun,  and  accepted  by  the  defend- 
ant. The  cause  was  tried  at  Guildhall  at  the  sittings  after  Easter 
terra,  1815,  before  C.  J.,  when  it  was  contended  on  the  part  of  the 
defendant,  that  it  would  l)e  treason  to  paj^  the  bills,  by  the  statute 
o4  G.  3,  c.  9,  §§  1,  4.  GiBBs,  C.  J.,  refused  to  hear  the  objection:  he 
did  not  know  to  what  extent  it  miglit  be  carried,  but  if  it  could  be 
supported  to  its  full  extent,  many  of  our  miserable  fellow-subjects 
detained  in  France  must  have  starved.  It  was  also  objected,  that 
this  being  a  contract  with  an  alien  enemy,  was  not  merely  suspended 
during  the  war,  but  absolutely  void;  the  Chief  Justice  thought 
otherwise,  and  the  jury  found  a  verdict  for  the  plaintiff. 

Vaughan,  Serjt.,  on  a  former  day  in  this  term  moved  for  a  rule 
?2isi  on  both  these  objections,  when,  it  being  suggested  on  the  part  of 
the  plaintiff,  that  the  statute  34  G.  3,  c.  9,  had  expired  at  the  peace 
of  1800  and  never  been  re-enacted,  the  court  gave  time  to  ascertain 
that  fact,  and  that  being  found  to  be  the  case,  Vaughan  now  moved 
upon  the  second  objection  only,  namely,  that  the  indorsement  of  the 
bill  to  an  alien  enemy  was  void.  For  this  he  cited  AntJion  v.  Fisher, 
where  it  is  held  that  no  action  can  be  maintained  by  an  alien  in  the 
courts  of  this  country  on  a  ransmn  hill,  because  it  is  a  right  clahned 
to  be  acquired  l)y  him  in  actual  war.  Lord  Ashburton's  argument 
in  RicordN.  BMenham,  3  ]>urr.,  1734,  which  decision  is  overruled 
l>y  Anthori  V.  Fisher,  is  to  be  called  in  aid.     If  a  Itond  be  given  to  an 


CHAP.  II.]  ANTOIXE   V.  MOKSHKAD.  309 

alien  enemy,  it  is  good  quoad  the  obligor,  that  is,  it  enures  only  for 
the  benefit  of  the  Crown.  And  if  so  of  a  bond,  the  law  must  be  the 
like  on  a  l)ill  of  exchange.  So  is  it  of  contracts  of  insurance  made 
with  an  alien  enemy.  Frindt  v.  Waters,  15  East.,  2GG,  Lord  Ellkx- 
ijououcii,  C.  J.,  says  the  defense  of  alien  enemy  may  go  to  the.  con- 
tract itself,  on  which  the  plaintiff  sues,  and  operate  as  a  perpetual 
bar;  though  in  that  case  the  contracting  party  having  become  an 
enemy  after  the  contract,  it  was  held  to  be  only  a  temporary  suspen- 
sion of  the  right  to  sue,  but  he  showed  a  disposition  to  confirm  the 
cases  of  Brandon  v.  Nei^bitt^  6  T.  R.,  2.3,  and  Bristom  v.  Toicers,  6  T.  R., 
35.  No  case  has  decided  that  a  contract  made  with  an  alien  enemy  in 
time  of  war  may  be  ever  afterwards  enforced.  Chief  Baron  Gilbert 
lays  it  down,  that  upon  the  plea  of  alien  enemy  the  right  of  the 
plaintiff  is  forfeited  to  the  crown,  as  a  species  of  reprisal  upon  the 
state  committing  hostility. 

GiiJBS,  C.  J.: — "  It  will  not  l)e  useless  to  consider  what  legal  proposi- 
tions can  be  deduced  from  the  cases  cited  on  behalf  of  the  defendant, 
and  to  try  how  far  they  are  applicable  to  the  present  case.  This  is 
no  bill  of  exchange  drawn  in  favour  of  an  alien  enemy,  but  by  one 
subject  in  favour  of  another  subject,  upon  a  subject  resident  here,  the 
two  first  being  both  detained  prisoners  in  France ;  the  drawer  might 
legally  draw  such  a  bill  for  his  subsistence.  After  the  bill  is  so 
drawn,  the  payee  indorses  it  to  the  plaintiff,  then  an  alien  enemy. 
How  was  he  to  avail  himself  of  the  bill,  except  by  negotiating  it,  and 
to  whom  could  he  negotiate  it,  except  to  the  inhabitants  of  that 
country  in  which  he  resided  ?  I  can  recollect  but  two  principles 
from  the  cases  cited  by  the  counsel  for  the  defendant,  and  they  are 
principles  on  which  there  never  was  the  slightest  doubt.  First,  that 
a  contract  made  with  an  alien  enemy  in  time  of  war  and  that  of  such 
a  nature  that  it  endangers  the  security,  or  is  against  the  policy  of 
this  country,  is  void.  Such  are  policies  of  insurance  to  protect  an 
enemy's  trade.  Another  principle  is,  that  however  valid  a  contract 
originally  may  be,  if  the  party  become  an  alien  enemy  he  cannot  sue. 
The  Crown,  during  the  war,  may  lay  hands  on  the  debt,  and  recover 
it,  but  if  it  do  not,  then,  on  the  return  of  peace  the  rights  of  the  con- 
tracting alien  are  restored,  and  he  may  himself  sue.  No  other  prin- 
ciple is  to  be  deduced.  The  first  may  be  laid  out  of  the  case,  for  this 
was  not  in  its  creation  a  contract  made  with  an  alien  enemy.  The 
second  question  is,  whether  the  bill  came  to  the  hands  of  the  plaintiff 
by  a  good  title  ?  Under  the  circumstances  of  this  case,  not  meaning 
to  lay  down  any  general  rule  beyond  this  case,  I  am  of  opinion  that 
the  indorsement  to  the  plaintiff  conveyed  to  him  a  legal  title  in 
this  bill,  on  which  the  king  might  have  sued  in  the  time  of  (he  war. 


olO  EFFECTS    OF    WAR    AS   BETWEEN   ENEISIIES.         [PAIIT    II. 

and  he  not  having-  so  done,  the  plaintifif  might  sue  after  peace  was 
proclaimed." 

Heath,  J.,  was  absent. 

Chamure,  ,T. — "I  am  perfectly  of  the  same  opinion,  and  it  w-ould 
he  of  very  mischievous  consequence  if  it  were  otherwise." 

Dallas,  J. — "  This  is  not  a  contract  between  a  subject  of  this 
country  and  an  alien  enemy,  nor  is  it  a  contract  of  that  sort  to  which 
the  principle  can  be  applied.  That  principle  is,  that  there  shall  be 
no  communication  with  the  enemy  in  time  of  war,  but  this  is  a  con- 
tract between  two  subjects  in  an  enemy's  country,  wdiich  is  perfectly 

legal. 

"  Ruled  refused." 


Section  32. — Raxsom  Bills. 


CORNU  V.  BLACKBURNE. 
King's  Bench,  1781. 

(  2  Bouylas,  640.) 

A  French  captor  had  ransomed  a  British  vessel,  taken  a  hostage,  and  was  then 
in  turn  captured  by  British  cruisers;  but  he  concealed  the  ransom  bill,  and  after- 
ward sued  upon  it.    Held,  that  he  could  recover  in  the  action. 

This  was  the  case  of  an  English  vessel  and  cargo  captured  by  a 
French  privateer  and  ransomed  and  a  hostage  taken  as  security ; 
but  the  privateer  w-as  in  turn  captured  by  two  English  frigates  and 
taken  into  an  English  port.  The  ransom  bill  was  concealed,  how- 
ever, l)y  the  first  captor,  and  not  given  up ;  and  the  present  suit  is 
on  the  ransom  bill.     This  document  is  as  follows  : 

"  Xo.  CO.  Registered  tlie  present  ransom  bill  at  the  Admiralty  office,  Boidogne, 
the  2'Ah.  October,  1770,  and  delivered  in  double  to  Captain  itolx-rt  ("ornu,  com- 
manding, the  cutter,  the  Princesse  de  linhccrj  privateer,  of  this  port,  by  me  under- 
written Chief  Register.  Signed,  Merlin,  Boulogne.' — We  the  underwitten  Robert 
Cornu  of  Boulogne,  commander  of  the  ship  the  Princesse  de  Robecq,  privateer  of 
Boulogne,  and  Thomas  Fincliett  of  Liverpool,  master  of  the  ship  the  iJulli/  of  Li  ver- 
poole,  have  agreed  as  followeth,  viz. — That  I,  Robert  Cornu,  commander  of  the 
said  privateer,  acknowledge  to  have  ransomed  tlie  said  ship  the  Dolly  of  Liver- 
poole,  belonging  to  .John  Blackburne,  burgher  of  Livei-poole,  burthen  lOo  tons, 
on  the  6th  of  .Tune,  in  the  year  1780,  at  the  heighth  of  Edinburgh,  going  from 
Lvnn  to  Liverpoole  in  England,  under  English  colours,  and  passport  of  said  Eng- 
land, loaded  with  wlieat,  for  the  account  of  John   Blackburne,  burgher  of  Liver- 


CHAP.  II. ]  CORNU   V.  BLACKBUR^E.  311 

poolc;  wliich  vessel  I  have  agreed  to  ransom  for  the  sum  of  1300L  sterling,  to  be 
paid  to  Mr.  HauffouUier,  fitter  of  the  said  privateer  at  Dunkii-k;  in  consideration 
of  which  I  have  set  the  said  vessel  at  liberty  to  go  to  the  port  of  Liverpoole,  where 
she  is  to  be  arrived  in  the  time  and  space  of  three  months,  afler  the  expiration  of 
which  this  present  agreement  shall  not  clear  her  from  being  taken  by  any  other 
privateers.  For  security  of  which  ransom,  I  have  received  for  hostage  on  board 
of  the  said  ship,  John  Butler,  cousin  to  the  captain  of  the  said  vessel,  desiring  all 
friends  and  allies  to  let  safely  and  freely  proceed  the  said  vessel  to  the  port  of 
Liverpoole,  without  any  let  or  molestation,  during  the  said  time  or  course  of  her 
voyage;  and  I, Thomas  Finehett,  owner  of  the  said  ship  and  merchandizes,  have 
volunlarily  submitted  to  the  payment  of  the  said  ransom,  viz.  VM)l.  sterling;  for 
surety  whereof  I  have  delivered  up  the  said  John  Butler  of  Liverpoole  for  hostage, 
liromising  not  to  go  against  the  conditions  of  this  present  contract,  whereof  each 
of  us  have  a  copy  by  us,  which  we  have  signed,  with  the  said  hostage.  Signed  on 
board  the  said  ship,  the  (itli  of  June  in  the  year  1780.  And  it  is  further  expressly 
covenanted  and  agreed,  that  I  the  said  Thomas  Finehett  do  bind  and  oblige  myself, 
and  engage  my  vessel  and  cargo,  to  i^ay  or  cause  to  be  paid  to  the  owners  of  the 
said  privateer,  the  full  amount  of  the  said  ransom,  should  the  said  hostage  come 
to  die,  or  to  desert,  or  that  the  said  privateer  should  perish,  or  be  taken  with  the 
hostage  on  board,  without  which  condition  the  captain  of  the  said  privateer  would 
not  have  consented  to  the  above  ransom,  which,  in  all  cases  whatsoever,  shall  be 
well  and  truly  paid. — (Signed)  Robert  Cornu.     Thomas  Finehett.     John  Butler."' 

Lord  Mansfield  : — "  It  is  sound  policy,  as  well  as  good  morality,  to 
keep  faith  with  an  enemy  in  time  of  war.  This  is  a  contract  whicli 
arises  out  of  a  state  of  hostility,  and  is  to  be  governed  by  the  law  of 
nations,  and  the  eternal  rules  of  justice.  The  additional  clause  is 
particularly  adapted  to  this  case.  There  is  no  pretext  to  impeach  it, 
on  the  ground  of  fraud  or  extortion.  The  bill  was  registered  before 
the  French  ship  sailed,  with  this  clause  in  it.  Nor  does  any  inference 
arise,  from  its  insertion,  that  the  general  law  was  understood  to  be 
otherwise ;  for  it  is,  also,  stipulated,  that  the  death  of  the  hostage 
shall  not  vacate  the  contract,  which  stipulation  the  parties  must  be 
presumed  to  have  known  to  be  unnecessary,  because  the  decision  in 
llicord  V.  Bettenham  was  notorious  over  all  Europe.  Learned  laAvyers 
were  Avritten  to  on  that  occasion,  both  in  France  and  Holland,  and 
Mr.  Justice  Blackstone  shewed  me  several  letters  he  had  received 
from  abroad,  on  the  subject.  It  is  said,  that,  by  the  law  of  nations, 
the  recapture  puts  an  end  to  the  ransom  bill;  and  the  argument  is, 
that  the  court  of  Admiralty  decrees  salvage  for  retaking  the  ransom 
bill. 

"  But  what  are  the  cases  brought  to  prove  this  position  ?  None  of 
them  were  litigated  but  the  last,  and,  there,  no  ransom  bill  was  forth- 
coming. Upon  what  was  salvage  given  in  that  case  ?  They  seem 
to  have  mistaken  the  nature  of  salvage.  They  seem  to  consider  it 
AS  a  debt  Avhich  may  be  exacted.  But  no  man  can  be  compelled  to 
pay  salvage,  unless  he  chooses  to  have  the  property  back.     They 


312  EFFECTS    OF   WAR    AS    BETWEEN    EXEiHES.         [pA1:T  n. 

have  confounded  distinct  subjects.  What  is  the  eighth  part  ot  a 
ransom  bill  ?  Can  the  eighth  part  of  an  hostage  be  claimed  as  salvage  ? 
Could  the  recaptor  make  use  of  the  ransom  bill  ? 

"  Could  he  bring  an  action  on  it  in  the  foreign  captain's  name  ? 
When  the  owner  gets  possession  of  the  ransom  bill,  it  may  be  a  dif- 
ferent consideration.  But  the  present  case  is  clear  on  two  grounds. 
1.  The  special  clause  is  decisive  ;  and,  2.  Independent  of  that  clause, 
there  never  has  been  any  capture  of  the  ransom  bill. 

"  The  authority  from  Grotius  is  very  strong  on  this  last  ground." 
WiLLEs,  and  Ashuurst,  Justices,  "  of  the  same  opinion." 
BuLLEK,  Justice,  ''  of  the  same  opinion. — The  last  ground  goes  all 
the  length ;  for  the  bill  was  never  taken. 

"  The  Postea  to  be  delivered  to  the  plamtiff."  ^ 


THE  "CHARMIXG  NANCY." 

Opixiox  of  G.  Hay,  17G1. 

{ifaisdeii's  Admiralty  Cases,  398.) 
"Who  may  sue  on  a  ransom  bill  ? 

The  ship  Charming  JVancy  (whereof  James  Fanneson  now  is  or 
lately  was  master)  being  taken  as  prize  by  the  French,  w'as  with  her 
cargo  ransomed  by  the  master  for  the  sum  of  £  ;   and  Francis 

Burt  and  one  of  the  crew,  whose  name  is  unknown,  consented  to  go 
as  hostages  for  the  payment  of  the  said  ransom ;  in  consequence 
whereof  the  said  ship  and  cargo  were  released.  The  ship  afterwards 
arrived  at  her  destined  port,  and  has  there  unlivered  part  of  her 
cargo,  but  the  said  ransom  has  not  been  paid,  and  the  said  hostages 
still  remain  prisoners.  A  suit  is  intended  to  be  commenced  in  the 
Court  of  ^Vdmiralty  by  the  relations  of  Burt  to  compel  the  payment 
of  the  said  ransom,  and  thereby  procure  the  release  of  the  hostage, 
and  it  is  uncertain  whether  the  ship,  and  that  part  of  the  cargo  which 
remains  unlivered  may  be  sufficient  to  answer  the  said  ransom. 

1  The  case  of  Bicord  v.  lielienhcon,  3  Burrow,  1734  (1T()2),  referred  to  by  Lord 
Mansfield,  was  that  of  a  British  ship  captured  and  ransomed  by  a  Fronoli  captor,  a 
hostage — .Joseph  Bell — being  taken.  The  hostage  died  in  prison  ;  and  the  present 
action  was  subsequently  brought  on  the  ransom  bill  by  the  captor. 

It  was  objected  that,  the  plaintiff  being  an  alien  enemy  at  the  time  of  the  con- 
tract, the  ransom  bill  was  void,  the  hostage  alone  being  entitled  to  bring  an  action. 
But  the  court  overruled  these  objections  and  gave  judgment  for  the  plaintiff. 


CHAP.  II.]  THE    "  PATllIXENT."  313 

Query. — "Have  not  Burt's  relations  a  right  to  bring  an  action 
against  the  master,  for  tlie  performance  of  whose  contract  tlie 
liostages  became  bound,  as  well  [as]  agninst  the  ship  and  goods,  so 
that  they  may,  if  necessary,  proceed  against  both  ?  And  can  a  war- 
rant on  such  action  be  refused  ?  And,  as  the  name  of  the  other 
hostage  is  not  at  present  known,  may  not  such  action  be  entered  in 
tlie  name  of  Burt  and  company  as  hostages  ?  " 

Answer. — "  I  do  not  know  any  instance  of  a  warrant  issuing  against 
the  master  in  such  a  case.  The  shi})  and  goods  are  in  the  first  place 
ans^^'erable  for  the  redemption  of  a  hostage. 

"  These  may  be  arrested,  and  the  suit  may  be  brought  by  Burt's 
relations  on  behalf  of  both  the  hostages,  naming  the  one  and  describ- 
ing the  other  of  name  at  present  unknown." 

G.  Hay,  January  24,  1701. 

"  In  the  first  instance  I  think  you  cannot  proceed  against  the 
master.  If  the  ship  and  goods  will  not  produce  the  sum  stipulated 
for  the  ransom,  and  you  can  show  that  the  master  fraudulently  ran- 
somed, I  think  he  may  then  be  prosecuted  on  behalf  of  the  hostages." 


THE  "PATRIXENT." 
Opinion  of  Wm.  Wynne,  1781. 

( 3/ar.S'cZeu's  Admiralty  Canes,  398.) 

A  British  sliip  was  ransomed  by  an  American  captor,  and  a  liostage  talcen.  The 
bill  was  sent  to  Holland  to  be  forwarded  to  England  for  collection.  The  opinion 
was  that  a  suit  on  the  ransom  bill  could  be  maintained  against  the  master  and 
owners  of  the  ransomed  vessel,  but,  it  must  first  be  shown  that  the  hostage  was 
detained  or  dead. 

The  ship  Patr'txent^  Hannibal  Lush,  master,  was  taken  by  an 
American  privateer,  and  was  ransomed  for  £5,500  sterling,  and  an 
hostage  delivered,  who  was  carried  to  America.  For  the  above  sum 
the  captain  of  the  ransomed  ship  drew  a  bill  upon  ^Messrs.  John 
Glassford  &  Co.,  merchants  in  Glasgow,  a  copy  of  which  is  under- 
written, who  are  owners  of  the  vessel. 

The  ransom-bill  was  sent  to  Amsterdam,  and  from  thence  remitted 
to  merchants  in  London,  to  recover  the  value  of  it.  When  it  \\as 
first  presented  to  the  gentlemen  upon  whom  it  was  drawn,  they 
offered  £1,000,  part  of  it,  as  the  value  of  the  ship ;  but  it  not  being 
thought  prudent  to  receive  a  part  of  the  money,  their  ofter  was  then 


314  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [PAItT  11. 

refused:  since  wliieli  the  said  gentlemen,  together  Avith  the  owners 
of  the  cargo,  have  refused  to  pay  the  bill  or  any  part  of  it. 

Your  opinion  is  desired  whether  the  holder  of  this  ransom  l)ill  can 
maintain  a  suit  in  the  Admiralty  Court  against  the  owners  of  the 
ship  and  cargo  for  the  recovery  of  tlie  sum  for  which  such  bill  was 
given  ?  And  whether  such  suit  must  be  brought  against  every  in- 
dividual owner  of  the  ship  and  cargo. 

Copy  of  the  Bill. 

"  £5,500.  On  board  the  schooner  Hanna. 

July  -26,  1779. 

"  At  ninety  days'  sight  my  second  bill  of  exchange,  first  and  third 
of  the  same  tenor  not  paid,  pay  to  Richard  Jackson  or  order  the  sum 
of  five  thousand  five  hundred  pound  sterling,  for  the  ransom  of  the 
ship  Patrlcent  and  her  cargo. 

Haxnibal  Lush. 

"  To  Messrs.  Johx  Glassford  &  Co., 
"  Merchants,  Glasgow." 

Ansv-er. — "  I  think  that  the  owner  of  this  ransom-bill  may  main- 
tain a  suit  in  the  Court  of  Admiralty  for  the  recovery  of  the  sum  for 
which  the  bill  was  given  ;  but  I  apprehend  they  must  make  it  appear 
that  the  hostage  is  not  at  liberty,  if  he  is  living,  before  they  can  ob- 
tain payment  of  the  money.  The  proper  way  of  commencing  such  a 
suit  would  be  by  arresting  the  ransomed  ship  with  tlie  cargo  on 
board.  But  if  that  cannot  be  done,  I  think  it  will  be  sufficient  to 
bring  the  suit  against  Lush,  the  master,  who  drew  the  bill,  and 
Messrs.  Glassford  &  Co.,  the  owners  of  the  vessel,  upon  whom  it  is 
drawn." 

"Wm.  Wyxxe,  Doctors'  Commons,  July  'iSth,  1781.^ 

^  Ransom  Contracts. — In  a  subsequent  case,  Anthon  v.  Fisher,  2  Douglas,  649, 
note,  it  was  settled  in  English  law  that  an  alien  enemy  cannot  sue  on  a  ransom 
bill  for  want  of  a  persona  standi  injudicio. 

And  so  in  the  case  of  the  Hoop,  1  C.  Rob.,  201.  Sir  W.  Scott  said,  "even  in  the 
case  of  ransoms  which  were  contracts,  but  contracts  arising  ex  jure  belli,  and  tol- 
erated as  such,  the  enemy  was  not  permitted  to  sue  in  his  own  proper  person  for 
the  payment  of  tlie  ransom  bill:  but  the  payment  was  enforced  by  an  action  by  the 
imjirisoned  hostage  in  the  courts  of  his  own  country,  for  the  recovery  of  his  free- 
dom." 

"  But  the  effect  of  such  a  contract.*"  says  Wheaton.  Ed  of  1S(m.  p.  (i!)."),  "like 
that  of  every  other  which  may  be  lawfully  entered  into  between  belligerents,  is  to 
suspend  the  character  of  an  enemy,  so  far  as  respects  the  parties  to  the  ransom  bill; 
and,  consequently,  the  technical  objection  of  the  want  of  aj^ersona  standi  injudi' 


CiiAV.  II.]  THE   "  IXDI^iN   CHIEF."  315 


Section  33. — Commercial  Domicil. 


THE  "INDIAN  CHIEF." 

High  Court  of  Admiralty,  1801. 

( 3  C.  Robinson,  12.) 

This  was  the  case  of  a  ship  and  cargo  seized  in  tlie  liarbor  of  Cowes,  on  a  voyage 
from  Batavia  to  Hamburg,  in  wliich  two  questions  arose,  respecting  tlie  national 
oliaracter  of  tlie  OM'ners  of  tlie  sliip  and  cargo  respectively,  botli  American  citizens 
residing  in  Britisli  territory,  and  cliarged  with  trading  witli  tlie  enemy. 

Ueld.  That  a  neutral  merchant  residing  in  a  belligerent  country  is  to  be  regarded 
as  a  belligerent  trader:  but  that  the  moment  he  puts  himself  in  motion  bona  fide 
to  return  to  his  native  country  sine  aninio  revertendi,  he  loses  his  belligerent  char- 
acter, and  resumes  that  of  a  neutral. 

Judgment, — Sir  W.  Scott  : — 

"This  is  the  case  of  a  ship  seized  in  the  port  of  Cowes,  where 
she  came  to  receive  orders  respecting  tlie  deUvery  of  a  cargo  taken 
in  at  Batavia,  with  a  professed  original  intention  of  proceeding 
to  Hamburg ;  but  on  coming  into  this  country  for  particular 
orders,  the  ship  and  cargo  were  seized  in  port.  It  does  not  ap- 
pear clear  to  the  court,  that  it  might  not  be  a  cargo  intended  to 
be  delivered  in  this  country,  as  many  such  cargoes  have  been,  un- 

cio  cannot,  on  principle,  prevent  a  suit  being  brought  by  the  captor,  directly  on  the 
ransom  bill."'  And  this  appears  to  be  the  practice  in  the  maritime  courts  of  the 
European  continent.  (Valin,  Ord.  de  la  Marine,  liv.  3,  tit.  9,  art.  It);  Pistoye  et 
Duverdy,  I.,  280  et  seq.) 

"  If  the  ransomed  vessel,"  says  Wheaton,  Ed.  of  ISfio,  p.  G94,  "  is  lost  by  the  perils 
of  the  sea,  before  her  arrival,  the  ol)ligation  to  pay  the  sum  stipulated  for  her  ransom 
is  not  thereby  extinguished.  *  *  *  Even  where  it  is  expressly  agreed  that  the  loss  of 
the  vessel  by  these  perils  shall  discharge  the  captured  from  the  payment  of  the  ran- 
som, this  clause  is  restrained  to  the  case  of  a  total  loss  on  the  high  seas,  and  is  not 
extended  to  shipwreck  or  stranding,  which  might  afford  tlie  master  a  temptation 
frauilulently  to  cast  away  his  vessel,  in  order  to  save  the  most  valuable  part  of  the 
cargo,  and  avoid  the  payment  of  the  ransom.  *  *  *  So,  if  the  captor,  after  having 
ransomed  a  vessel  belonging  to  the  enemy,  is  himself  taken  by  the  enemy,  together 
with  the  ransom  bill,  of  which  he  is  the  bearer,  this  ransom  bill  becomes  a  part 
of  the  capture  made  by  the  enemy;  and  the  persons  of  the  hostile  nation  who  were 
debtors  of  the  ransom  are  thereby  discharged  from  their  obligation."' 

On  the  subject  of  ransom  generally,  see  Judge  Stoi{y's  opinion  in  Maisunnare  v. 
Eeutin<j,  2  Gallison,  337. 


SI 3  EFFECTS    OF   WAR    AS   BETWEEN    ENEMIES.         [rAKT  11. 

der  the  Dutch  propert}-  act :  I  mention  this  to  meet  an  observation 
that  has  been  thrown  out,  'that  it  is  doubtful  whether  the  ship 
might  not  be  confiscable  on  the  ground  of  being  a  neutral  ship  com- 
ing from  a  colony  of  the  enemy,  not  to  her  own  ports  or  the  ports  of 
this  country.'  I  cannot  assume  it  as  a  demonstrated  fact  in  the  case, 
that  the  cargo  was  to  be  delivered  at  Hamburg. — The  vessel  sailed 
in  1795,  and  as  an  American  ship  with  an  American  pass,  and  all 
American  documents ;  but  nevertheless  if  the  owner  really  resided 
here,  such  papers  could  not  protect  his  vessel ;  if  the  owner  was 
resident  in  England,  and  the  voyage  such  as  an  English  merchant 
could  not  engage  in,  an  American  residing  here,  and  carrying  on 
trade,  could  not  protect  his  ship  merely  by  putting  American  docu- 
ments on  board ;  his  interest  must  stand  or  fall  according  to  the 
determination  which  the  court  shall  make  on  the  national  character 
of  such  a  person. 

"  There  are  two  propositions  which  are  not  to  be  controverted; 
that  3Ir.  Jolmson  is  an  American  generally  by  birth,  which  is  the 
circumstance  that  first  impresses  itself  on  the  mind  of  the  Court ; 
and  also  by  the  part  which  he  took  on  the  breaking  out  of  the 
American  war.  He  came  hither  when  both  countries  were  open  to 
him ;  but  on  the  breaking  out  of  hostilities,  he  made  his  election 
which  cotmtry  he  wottld  adhere  to,  and  in  consequence  thereof  went 
to  France.  As  to  the  doubt  that  has  been  suggested,  whether  he 
would  be  deemed  an  American,  not  having  l)een  personally  there  at 
the  time  of  the  declaration  of  the  independence  of  that  country ;  I 
think  that  is  sufficiently  cleared  up,  by  the  circumstances  of  his  being 
adopted  as  such  by  the  act  of  the  American  government,  declaring 
him  and  his  family  to  be  American  subjects,  and  by  the  official 
character  which  that  government  has  intrusted  to  him:  I  am  of 
opinion,  therefore,  that  he  has  not  lost  the  l)enefit  of  ins  native 
American  character.  He  came  however  to  this  country  in  1788, 
and  engaged  in  trade,  and  has  resided  in  this  cotmtry  till  1797; 
during  tliat  time  he  was  undoubtedly  to  be  considered  as  an  English 
trader ;  for  no  position  is  more  established  than  this,  that  if  a  person 
goes  into  another  country,  and  engages  in  trade,  and  resides  tliere, 
he  is,  by  the  law  of  nations,  to  be  considered  as  a  merchant  of  that 
country  ;  I  should  therefore  have  no  doubt  in  pronouncing  that  Mr. 
Johnson  was  to  be  considered  as  a  merchant  of  this  country,  at  the 
time  of  sailing  of  this  vessel  on  her  outw^ard  voyage.  That  leads  me 
to  take  a  view  of  the  circumstances  of  this  case ;  the  ship  went  out 
in  1795  with  Mr.  Hewlet  on  board,  and  Mr.  Johnson  says,  '  he  sent 
out  Mr.  Hev/let  as  supercargo,  and  put  the  vessel  under  his  control 
to  take  freight  for  America,  but  that  his  designs  were  frustrated  by 


CHAr.  II.]  THE    ''  INDIAN    CHIEF."  317 

viirious  cireuinstances; '  and  the  sliip  actuallj^  went  to  ^VFadcira, 
Madras,  ''J'l'aiiqualiar,  and  Eatavia,  and  from  thence  to  Cowes  where 
she  was  arrested. 

"  Now  there  can  be  no  doubt  that  if  Mr.  Johnson  had  continued 
where  he  was  at  the  time  of  sailing,  if  he  had  remained  resident  in 
England,  it  must  be  considered  as  a  British  transaction  ;  and  there- 
foi-e  a  criminal  transaction,  on  the  common  principle  that  it  is 
illegal  in  any  person  owing  an  allegiance,  though  temporar}',  to 
trade  with  the  public  enemy.  But  it  is  pleaded  that  he  had 
quitted  tins  country  before  the  capture,  and  that  he  had  done 
this  in  consequence  of  an  intention  lie  had  formed  of  removing 
much  earlier,  but  that  he  had  been  prevented  by  obstacles  that 
obstructed  his  wish  ;  to  this  effect  the  letter  of  March  1797,  is  ex- 
hibited, Avhicli  must  have  been  preceded  by  private  correspondence 
and  application  to  some  of  his  creditors.  It  does,  I  think,  breathe 
strong  expressions  of  intention,  and  of  an  ardent  desire  to  get  over 
the  restraint  that  alone  detained  him  ;  and  it  affords  conclusive  reason 
to  believe  that  if  he  had  been  a  free  man,  and  at  liberty  to  go  where 
he  pleased,  he  would  have  removed  long  before ;  and  that  he  was 
detained  here  as  a  hostage,  as  he  describes  himself,  to  his  creditors, 
on  motives  of  honor  creditable  to  his  character.  On  the  9th  of 
September  1797  he  did  actually  retire ;  of  the  sincerity  of  his  quit- 
ting this  country  there  can  hardly  be  a  doubt  entertained ;  it  is 
almost  impossible  to  represent  stronger  or  more  natural  grounds  for 
such  a  measure;  and  I  do  not  think  the  Court  runs  any  risk  of 
encountering  a  fraudulent  pretension,  put  forward  to  meet  the  cir- 
cumstances of  the  moment,  without  anything  of  an  original  and  bona 
fide  intention  at  the  bottom  of  it. 

The  ship  was  sent  out  under  the  management  of  the  supercargo, 
and  it  is  said  that  Mr.  ITewlet  exceeded  his  commission.  The  affidavit 
does  not  go  so  far ;  it  does  not  appear  from  that,  that  the  agent  had 
not  the  power  to  enter  into  such  an  engagement ;  but  this,  I  think, 
appears  clearly,  that  it  was  the  understanding  both  of  Mr.  Johnson, 
and  of  his  agent,  Mr.  Hewlet,  who  had  been  his  clerk,  and  to  whom 
he  refers  for  a  confirmation  of  his  avowed  design  of  removing,  that 
before  the  completion  of  such  a  voyage  Mr.  Johnson  would  be  in 
America ;  therefore  if  the  illegality  of  the  voyage  must  be  supposed 
to  have  presented  itself  to  their  minds,  as  a  British  transaction,  owing 
to  ;Mr.  Johnson's  residence  in  England,  there  was  reason  enough  for 
them  to  conclude  that  Mr.  Johnson  would  be  removed;  and,  on  that 
view  of  the  matter,  although  it  is  certain  that  an  agent  would  bind 
his  employer  in  such  a  case,  there  is  ground  sufficient  to  presume  that 
tlie  agent  acted  fairly  and  bona  fide,  and  under  the  expectation  that 
Mr.  Johnson  would  be  returned  to  America. 


318  EFFECTS    OF    WAR    AS   BETWEEN    ENEMIES.  [PAET  II. 

"The  ship  arrives  a  few  weeks  after  his  departure;  and  taking  it 
to  be  clear,  that  the  national  character  of  Mr.  Johnson  as  a  British 
merchant  was  founded  in  residence  only,  that  it  was  acquired  by- 
residence,  and  rested  on  that  circumstance  alone ;  it  must  be  held 
that  from  the  moment  he  turns  his  back  on  the  country  where  he 
has  resided,  on  his  way  to  his  own  country,  he  was  in  the  act  of  re- 
suming his  original  character,  and  is  to  be  considered  as  an  .Amer- 
ican :  The  character  that  is  gained  by  residence  ceases  by  residence : 
It  is  an  adventitious  character  which  no  longer  adheres  to  him,  from 
the  moment  that  he  puts  himself  in  motion,  bona  f.de,  to  quit  the 
country,  sine  animo  revertencU.  The  courts  that  have  to  apply  this 
principle,  have  applied  it  both  ways,  unfavorably  in  some  cases,  and 
favoraljly  in  others.  This  man  had  actually  quitted  the  country. 
Stronger  was  the  case  of  Mr.  Curtissos  (The  Sndle  Zei/Ider,  Lds.  Ap. 
25,  1783) ;  he  was  a  British  born-subject,  that  had  been  resident  in 
Surinam  and  St.  Eustatius,  and  had  left  those  settlements  with  an 
intention  of  returning  to  this  country ;  but  he  had  got  no  farther 
than  Holland,  the  mother  country  of  those  settlements,  when  the  war 
broke  out.  It  was  determined  by  the  Lords  of  Appeal,  that  he  Avas 
in  itinere,  that  he  had  put  himself  in  motion,  and  was  in  pursuit  of 
Ms  native  British  character  :  and  as  such,  he  was  held  to  be  entitled 
to  the  restitution  of  his  property.  So  here,  this  gentleman  was  in 
actual  pursuit  of  his  American  character ;  and,  I  think,  there  can  be 
no  doubt  that  his  native  character  was  strongly  and  substantially 
revived,  not  occasionally,  nor  colorably,  for  the  mere  purpose  of  the 
present  claim ;  and  therefore  I  shall  restore  the  ship." 

[The  cargo  of  this  vessel  belonged  to  Mr.  Millar,  resident  in  Cal- 
cutta as  American  consul.  He  was  held  to  be  a  British  merchant 
engaged  in  trade  with  the  enemy,  and  his  goods  were  therefore  con- 
demned as  droits  of  admiralty,  being  seized  in  a  British  port.  His 
consular  character  made  no  difference  whatever  in  protecting  his 
trade.] 


CHAP.  II.]  THE   "  VENUS."  319 

THE  «  VEXUS." 

Supreme  Court  of  the  United  States,  li*14. 

(8  Crunch,  253.) 

If  a  citizen  of  the  United  States  establishes  his  domicil  in  a  foreiijn  country 
between  wliicli  and  tlie  United  States  hostilities  afterwards  break  out,  any  prop- 
erty shipped  by  such  citizen  before  knowledge  of  the  war,  and  captured  by  an 
American  cruiser  after  the  declaration  of  war,  must  be  condemned  as  lawful  prize. 

Judgment, — Washixgtox,  J.: — 

"  *  *  *  The  great  question  involved  in  this,  and  many  other  of 
the  prize  cases  which  have  been  argued,  is,  wliether  the  property  of 
these  chiimants  who  were  settled  in  Great  Britain,  and  engaged  in 
the  commerce  of  tliat  country,  shipped  before  they  had  a  knowledge  of 
the  war,  but  which  was  captured,  after  the  declaration  of  war,  by 
an  American  cruiser,  ought  to  be  condeunied  as  lawful  prize.  It  is 
contended  by  the  captors,  that  as  these  claimants  had  gained  a 
domicil  in  Great  Britain,  and  continued  to  enjoy  it  up  to  the  time 
w;ir  was  declared,  and  when  these  captures  were  made,  they  must 
be  considered  as  British  subjects,  in  reference  to  this  property,  and? 
consequently,  that  it  may  legally  be  seized  as  prize  of  war,  in  like 
manner  as  if  it  had  belonged  to  real  British  subjects.  But,  if  not  so, 
it  is  then  insisted  that  these  claimants,  having,  after  their  naturaliza- 
tion in  the  United  States,  returned  to  Great  Britain,  the  country  of 
their  birth,  and  there  resettled  themselves,  they  became  redintegrated 
British  subjects,  and  ought  to  be  considered  by  this  court  in  the  same 
light  as  if  they  ne^er  had  emigrated.  On  the  other  side  it  is  argued, 
that  American  citizens  settled  in  the  country  of  the  enemy,  as  these 
persons  were,  at  the  time  war  was  declared,  w^ere  entitled  to  a  reason- 
able time  to  elect,  after  they  knew  of  the  war,  to  remain  there,  or  to  re- 
turn to  the  United  States ;  and  that  until  such  election  was,  bona  fide, 
made,  the  courts  of  this  country  are  bound  to  consider  them  as 
American  citizens,  and  their  property  shipped  before  they  had  an 
opportunity  to  make  this  election,  as  being  protected  against  Ameri- 
can capture. 

"  There  being  no  dispute  as  to  the  facts  upon  which  the  domicil 
of  these  claimants  is  asserted,  the  questions  of  law  alone  remain  to 
be  considered.  They  are  two. — First,  by  what  means  and  to  what 
extent,  a  national  character  may  be  impressed  upon  a  person  different 
from  that  which   permanent  allegiance  gives  him  ?  and,  secondly, 


320  EFFECTS    OF    WAE    AS    BETWEEN    EXEMIES.         [PAET  U. 

what  are  the  legal  consequences  to  which  this  acquired  character 
may  expose  him,  in  the  event  of  a  war  taking  place  between  the 
countr}^  of  his  residence  and  that  of  his  birth,  or  in  which  he  had 
been  naturalized  ? 

"1.  The  writers  upon  the  law  of  nations  distinguish  between  a 
temporary  residence  in  a  foreign  country,  for  a  special  purpose,  and 
a  residence  accompanied  with  an  intention  to  make  it  a  permanent 
place  of  abode.  The  latter  is  styled  by  Vattel,  doi/iict'I,  which  he 
defines  to  be,  'a  habitation  fixed  in  any  place  with  an  intention  of 
always  staying  there.'  *  *  * 

"  The  question  whether  the  person  to  be  affected  l;)y  the  right  of 
domicil  had  sufficientlj^  made  known  his  intention  of  fixing  himself 
permanently  in  the  foreign  country,  must  depend  upon  all  the  cir- 
cumstances of  the  case.  If  he  had  made  no  express  declaration  on 
the  subject,  and  his  secret  intention  is  to  be  discovered,  his  acts 
must  be  attended  to,  as  affording  the  most  satisfactory  evidence  of 
his  intention.  On  this  ground  it  is,  that  the  courts  of  England  have 
decided,  that  a  person  who  removes  to  a  foreign  country,  settles 
himself  there,  and  engages  m  the  trade  of  the  comitry,  furnishes  by 
these  acts  such  evidence  of  an  intention  permanently  to  reside  there, 
as  to  stamp  him  with  the  national  character  of  the  state  where  he 
resides.  In  questions  on  this  subject,  the  chief  point  to  be  considered, 
is  the  animics  manendi;  and  courts  are  to  devise  such  reasonable 
rules  of  evidence  as  may  establish  the  fact  of  intention.  If  it  suf- 
ficiently appear  that  the  intention  of  removing  was  to  make  a  per- 
manent settlement,  or  for  an  indefinite  time,  the  right  of  domicil  is 
acquired  by  a  residence  even  of  a  few  days.  This  is  one  of  the  rules 
of  the  British  courts,  and  it  appears  to  be  perfectly  reasonable. 
Another  is,  that  a  neutral  or  subject,  found  residing  in  a  foreign 
country  is  presumed  to  be  there  animo  manendi ;  and  if  a  state  of 
war  should  bring  liis  national  character  into  question,  it  lies  upon  him 
to  explain  the  circumstance  of  his  residence — (the  Bernon^  1  C.  Rob., 
86,  1U2).  *  *  * 

"  2.  The  next  question  is,  what  are  the  consequences  to  which 
this  acquired  domicil  may  legally  expose  the  person  entitled  to  it,  in 
the  event  of  a  wai-  taking  place  between  the  government  under 
which  he  resides  and  that  to  which  he  owes  a  permanent  allegiance  ? 
A  neutral  in  his  situation,  if  he  should  engage  in  open  hostilities 
with  the  other  belligerent  would  be  considered  and  treated  as  an 
enemy.  A  citizen  of  the  other  belligerent  could  not  be  so  considered, 
because  he  could  not  by  any  act  of  hostility,  render  himself,  strictly 
speaking,  an  enemy,  contraiy  to  his  permanent  allegiance.  But 
although  he  cannot  be  considered  an  enemy,  in  the  strict  sense  of 


CHAP.  II.]  THE    "  VENUS."  321 

the  word,  yet  he  is  deemed  such,  with  reference  to  the  seizure  of 
so  much  of  his  property  concerned  in  tlie  trade  of  the  enemy,  as  is 
connected  with  his  residence.  It  is  found  adliering  to  tlie  enemy. 
He  is  himself  adhering  to  the  enemy,  altliough  not  criminally  so, 
unless  he  engages  in  acts  of  hostility  against  his  native  country,  or, 
probably,  refuses,  when  required  by  his  country,  to  return.  The 
same  rule,  as  to  property  engaged  in  tlie  connnerce  of  the  enemy, 
applies  to  neutrals ;  and  for  the  same  reason.  The  converse  of 
this  rule  inevitably  applies  to  the  subject  of  a  belligerent  state 
domiciled  in  a  neutral  country  ;  he  is  deemed  a  neutral  by  botli 
belligerents,  with  reference  to  the  trade  wliicli  he  carries  on  witli 
the  adverse  belligerent,  and  with  all  the  rest  of  the  world. 

"  But  this  national  character  which  a  man  acquires  by  residence 
may  be  thrown  off  at  pleasure,  by  a  return  to  his  native  country,  or 
even  by  turning  his  back  on  the  country  in  which  he  has  resided, 
on  his  way  to  another.  To  use  the  language  of  Sir  W.  Scott,  it  is 
an  adventitious  character  gained  by  residence,  and  which  ceases  by 
non-residence.  It  no  longer  adheres  to  the  party  from  the  moment 
he  puts  himself  in  motion,  bona  fide^  to  quit  the  country  sine,  animo 
revertendi  (3  C.  Rob.,  17,12,  The  Indian  ChieJ').  The  reasonable- 
ness of  this  rule  can  hardly  be  disputed.  Having  once  acquired  a 
national  character  by  residence  in  a  foreign  country,  he  ought  to  be 
bound  by  all  the  consequences  of  it,  until  he  has  thrcnvn  it  off, 
either  by  an  actual  return  to  his  native  country,  or  to  that  where 
he  was  naturalized,  or  by  connnencing  his  removal  honafde,  and 
without  an  intention  of  returning.  If  anything  short  of  actual 
removal  be  admitted  to  work  a  change  in  the  national  character 
acquired  by  residence,  it  seems  perfectly  reasonable  that  the  evidence 
of  a  bonaf.de  intention  to  remove  should  be  such  as  to  leave  no 
doubt  of  its  sincerity.  Mere  declaration  of  such  an  intention  ought 
never  to  be  relied  upon,  where  contradicted,  or  at  least  rendered 
doubtful,  by  a  continuance  of  that  residence  which  impressed  the 
character.  They  may  have  been  made  to  deceive ;  or,  if  sincerely 
made,  they  may  never  be  executed.  Even  the  party  himself  ought 
not  to  be  bound  by  them,  because  he  may  afterwards  find  reason  to 
change  his  determination,  and  ought  to  be  permitted  to  do  so.  But 
when  he  accompanies  those  declarations  with  acts  which  speak  a 
language  not  to  be  mistaken,  and  can  hardly  fail  to  be  consummated 
by  actual  removal,  the  strongest  evidence  is  afforded  which  the 
nature  of  such  a  case  can  furnisli.  And  is  it  not  proper  that  the 
courts  of  a  belligerent  nation  should  deny  to  any  person  the  right 
to  use  a  character  so  equivocal,  as  to  put  it  in  his  po\Aer  to  claim 
whichever  mav  best  suit  his  purpose,  when  it  is  called  in  question? 
21 


322  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.         [PAIIT  II. 

If  his  propert\^be  taken  trading  with  the  enemj",  sliall  he  l)e  allowed 
to  shield  it  from  confiscation,  by  alleging-  that  he  had  intended  to 
remove  from  the  country  of  the  enemy  to  his  own,  then  neutral, 
and,  therefore,  that,  as  a  neutral,  the  trade  was  lawful  ?  If  war  ex- 
ists between  the  country  of  his  residence  and  his  native  country,  and 
his  property  be  seized  bj^  the  former,  or  by  the  latter,  shall  he  be 
heard  to  say  in  the  former  case,  that  he  was  a  domiciled  subject  of 
the  country  of  the  captor,  and  in  the  latter,  that  he  was  a  native 
subject  of  the  country  of  that  captor  also,  because  he  had  declared 
an  intention  to  resume  his  native  character  ;  and  thus  to  i^arry  the 
belligerent  rights  of  both  ?  It  is  to  guard  against  such  inconsist- 
encies, and  against  the  frauds  which  such  pretensions,  if  tolerated, 
would  sanction,  that  the  rule  above  mentioned  has  been  adopted. 
Upon  what  sound  princij)Ie  can  a  distinction  be  framed  between 
the  case  of  a  neutral,  and  the  subject  of  one  belligerent  domiciled  in 
the  country  of  the  other  at  the  breaking  out  of  the  war  ?  The  prop- 
erty of  each,  found  engaged  m  the  commerce  of  their  adopted 
country,  belonging  to  them,  before  the  war,  in  their  character  of 
subjects  of  that  country,  so  long  as  they  continued  to  retain  their 
domicil ;  and  a  state  of  war  takes  place  between  that  country  and 
any  other,  by  which  the  two  nations  and  all  their  subjects  become 
enemies  to  each  other,  it  follows  that  all  the  property,  which  was 
once  the  property  of  a  friend,  belongs  now,  in  reference  to  that 
property,  to  an  enemy.  This  doctrine  of  the  common-laAv  and  prize 
courts  of  England  is  founded,  like  that  mentioned  under  the  first 
head,  upon  national  law ;  and  it  is  believed  to  be  strongly  supported 
by  reason  and  justice.  It  is  laid  down  by  Grotius,  p.  5G3,  '  that  all 
the  subjects  of  the  enemy  who  are  such  from  a  permanent  cause, 
that  is  to  say,  settled  m  the  country,  are  liable  to  the  law  of  reprisals, 
whether  they  be  natives  or  foreigners ;  but  not  so  if  they  are  only 
trading  or  sojourning  for  a  little  time.'  And  why,  it  may  be  con- 
fidently asked,  should  not  the  property  of  such  subjects  be  exposed 
to  the  law  of  reprisals  and  of  war,  so  long  as  the  owner  retains  his 
acquired  domicil,  or,  in  the  words  of  Grotius,  continues  a  permanent 
residence  in  the  country  of  the  enemy  ?  They  were  before,  and 
continue  after  the  war,  bound,  by  such  residence,  to  the  society  of 
wliich  they  are  members,  subject  to  the  laws  of  the  state,  and  oAving 
a  quahfied  allegiance  thereto;  they  are  obliged  to  defend  it  (with 
an  exception  in  favor  of  such  a  subject,  in  relation  to  his  native 
country),  in  return  for  the  protection  it  affords  them,  and  the  privi- 
leges which  the  laws  bestow  upon  them  as  subjects.  The  property 
of  such  persons,  equally  with  that  of  the  native  subjects  in  tlieir 
totality,  is  to  be  considered  as  the  goods  of  the  nation,  in  regard  to 


CHAr.  II.]  THE   "  VENUS."  323 

otlier  states.  It  belongs,  in  some  sort,  to  the  state,  from  tlie  ri^ht 
wliicli  she  has  over  the  goods  of  its  citizens,  wliicli  make  a  part  of 
tlie  sum  total  of  its  riches,  and  augment  its  power.  Vatt.,  147,  and 
also  B.,  1,  c.  14.,  §  1S2.  In  reprisals,  continues  the  same  author,  we 
seize  on  the  proi)erty  of  the  subject,  just  as  we  would  that  of  the 
sovereign;  everything  that  belongs  to  the  nation  is  subject  to 
reprisals,  wherever  it  can  be  seized,  with  the  exception  of  a  deposit 
entrusted  to  the  public  faith.  B.,  2,  c.  IS,  §  344.  Now  if  a  perma- 
nent residence  constitutes  the  j^erson  a  subject  of  the  country  where 
he  is  settled,  so  long  as  he  continues  to  reside  there,  and  subjects 
his  property  to  the  law  of  reprisals,  as  a  part  of  the  property  of  the 
nation,  it  would  seem  difficult  to  maintain  that  the  same  consequences 
would  not  follow  in  the  case  of  an  open  and  public  war,  whetlier 
between  the  adopted  and  native  countries  of  persons  so  domi- 
ciled, or  between  the  former  and  any  other  nation.  If,  then,  nothing 
but  an  actual  removal,  or  hona  fde  beginning  to  remove,  can  change 
a  national  character  acquired  b}^  domicil,  and  if,  at  the  time  of  the 
inception  of  the  voyage,  as  well  as  at  the  time  of  capture,  the  prop- 
erty belonged  to  such  domiciled  person  in  his  character  of  a  subject, 
what  is  there  that  does,  or  ought  to  exempt  it  from  capture  Ity  the 
privateers  of  his  native  country,  if,  at  the  time  of  capture,  he  con- 
tinues to  reside  in  the  country  of  the  adverse  belligerent  ?  It  is 
contended  that  a  native  or  naturalized  subject  of  one  country',  who 
is  surprised,  in  the  country  where  he  was  domiciled,  by  a  declaration 
of  war,  ought  to  have  time  to  make  his  election  to  continue  there,  or 
to  remove  to  the  country  to  which  he  owes  a  permanent  allegiance, 
and  that,  until  such  election  is  made,  his  property  ought  to  be  pro- 
tected from  capture  by  the  cruisers  of  the  latter.  This  doctrine  is 
believed  to  be  as  unfounded  in  reason  and  justice,  as  it  clearly  is  in 
law.  In  the  first  place,  it  is  founded  upon  a  presumption  that  the 
person  will  certainly  remove,  before  it  can  possibly  be  known  Avhether 
he  may  elect  to  do  so  or  not.  It  is  said  that  this  presumption  ought 
to  be  made,  because,  on  receiving  information  of  the  war,  it  will  be 
his  duty  to  return  home.  This  position  is  denied.  It  is  his  duty 
to  commit  no  acts  of  hostility  against  his  native  country,  and  to 
return  to  her  assistance  when  required  to  do  so  ;  nor  Avill  any  just 
nation,  regarding  the  mild  principles  of  the  law  of  nations,  require 
him  to  take  arms  against  his  native  country,  or  refuse  her  permis- 
sion to  him  to  withdraw  whenever  he  wishes  to  do  so,  unless  under 
peculiar  circumstances,  which,  by  such  removal  at  a  critical  period, 
might  endanger  the  public  safety.  The  conventional  laAv  of  nations 
is  in  conformity  with  these  principles.  It  is  not  uncommon  to  stipu- 
late in  treaties  that  the  subjects  of  each  shall  be  allowed  to  remove 


324  EFFECTS    OF   AVAR   AS   BETWEEN   ENEMIES.      [PART  IL 

with  their  property,  or  to  remain  unmolested.  Such  a  stipulation 
does  not  coerce  those  subjects  either  to  remove  or  to  remain.  They 
are  left  free  to  choose  for  themselves ;  and  when  they  have  made 
their  election,  they  claim  the  rif^ht  of  enjoying-  it  under  the  treaty. 
But  until  the  election  is  made,  their  former  character  continues 
unchanged. 

"Until  this  election  is  made,  if  his  property  found  upon  the  high 
seas,  engaged  in  the  commerce  of  his  adopted  country,  should  be 
permitted  by  the  cruisers  of  the  other  belligerent  to  pass  free,  under 
the  notion  that  he  may  elect  to  remove,  upon  notice  of  the  war,  and 
should  arrive  safe,  what  is  to  be  done  in  case  the  ownier  of  it  shouid 
afterwards  elect  to  remain  where  he  is '?  or  if  captured  and  brouglit 
immediately  to  adjudication,  it  must,  u[)on  this  doctrine,  be  acquitted 
until  the  election  to  remain  is  made  known.  In  short,  the  point 
contended  for  w^ould  apply  the  doctrine  of  relation  to  cases  where 
the  party  claiming  the  benefit  of  it  may  gain  all,  and  can  lose  noth- 
ing. If  he,  after  the  capture,  should  find  it  his  interest  to  remain 
A\"here  he  is  domiciled,  his  property  embarked  before  his  election  was 
made,  is  safe  ;  and  if  he  finds  it  best  to  return,  it  is  safe  of  course.  ll 
is  safe  wdiether  he  goes  or  stays.  This  doctrine,  producing  sncl? 
contradictory  consequences,  is  not  only  unsup[)orted  by  any  authority, 
but  it  would  violate  principles  long  and  well  established  in  the  prize 
courts  of  England,  and  which  ought  not,  without  strong  reasons 
which  may  render  them  inapplicable  to  this  country,  to  be  dis- 
regarded by  this  court.  The  rule  there  is,  that  the  character  of  the 
property,  during  Avar,  cannot  be  changed  in  transitu^  by  any  act  of 
the  party,  subsequent  to  the  capture.  The  rule  indeed  goes  farther  : 
as  to  the  correctness  of  wdiich  in  its  greatest  extension,  no  opinion 
need  now  be  given  ;  but  it  may  safely  be  affirmed  that  this  charge 
cannot  and  ought  not  to  be  affected  by  an  election  of  the  owner  and 
shiiJ])er  of  it  made  subsequent  to  the  capture,  and,  more  especially, 
after  a  knowlege  of  the  capture  is  obtained  by  the  owner.  Observe 
the  conse(]uences  -which  Avould  result  from  it.  The  capture  is  made 
and  known.  The  owner  is  allowed  to  deliberate  whether  it  is  his 
interest  to  remain  a  subject  of  his  adopted,  or  of  his  native  country. 
If  the  capture  be  made  by  the  former,  then  he  elects  to  be  a  subject 
of  that  country  ;  if  by  tlie  latter,  then  a  sul)ject  of  that.  Can  such 
a  privileged  situation  be  tolerated  by  either  belligerent  ?  Can  any 
sj'stein  of  law  be  correct,  which  places  an  individual  who  adheres 
to  one  belligerent,  and,  to  the  period  of  his  election  to  remove,  con- 
tributes to  increase  her  wealth,  in  so  anomalous  a  situation  as  to  be 
clothed  with  the  privilege  of  a  neutral,  as  to  both  belligerents?  This 
notion  about  a  temporary  state  of  neutrality  impressed  upon  a  sub- 


CHAP.  II.]  THE    "  VEXUS."  325 

ject  of  one  of  the  belligerents,  and  the  consequent  exemption  of  his 
property  from  capture  by  either,  until  he  has  had  notice  of  the  war 
and  made  his  election,  is  altogether  a  novel  theory,  and  seems,  from 
the  course  of  the  argument,  to  owe  its  origin  to  a  sup[>osed  hardship 
to  which  the  contrary  doctrine  exposes  him.  But  if  the  reasoning- 
employed  on  this  subject  be  correct,  no  such  hardsliip  can  exist.  For 
if,  before  the  election  is  made,  his  pi-operty  on  the  ocean  is  liable  to 
capture  by  the  cruisers  of  his  native  and  deserted  country,  it  is  not 
only  free  from  capture  by  tliose  of  his  adopted  country,  l)ut  is  under 
ils  protection.  The  privilege  is  supposed  to  be  equal  to  the  disad- 
vantage, and  is  therefore  just.  The  double  privilege  claimed  seems 
too  unreasonable  to  be  granted.  *  *  * 

"  Condemnation  was  pronounced  in  all  the  cases."  ^ 

1  Chief-.Justice  Marshall  and  Livingston,  J.,  dissented  from  a  part  of  the 
jiulginent. 

Mr.  Duer  ("  Insurance,"  I.,  50"))  has  given  an  admirable  summary  of  the  dis- 
senting opinion  of  Chief-Justice  Maksiiall  in  the  Vcnufi,  tJie  principles  of  wliich  he 
seems  inclined  to  think  are  more  in  accordance  with  reason  than  the  one  laid  down 
by  the  majority  of  the  bench. 

Mr.  Duer  says  :  "  From  this  opinion  of  the  majority  of  the  court  T'liief-Justice 
Mahsiiall,  and  Mr.  Justice  Livingston,  dissented,  and  the  former  supported  his 
dissent  in  an  elaborate  argument,  which,  as  it  bears,  in  an  eminent  degree,  the  im- 
press of  his  vigorous  and  comprehensive  mind,  claims,  and  will  amply  reward,  the 
diligent  perusal  of  tlie  student.  The  basis  of  his  argument  was  the  position,  that, 
a  mere  commercial  domicil,  wholly  acquired  in  time  of  peace,  necessarily  ceases  at 
the  commencement  of  hostilities  between  the  country  of  the  merchant's  residence, 
and  that  of  his  allegiance  ;  and  this  position  he  expands  and  illustrates  by  a  great 
variety  of  arguments,  from  various  sources.  It  is  only  a  very  condensed  view  of 
his  reasoning  that  I  shall  attempt  to  exhibit.  Where  a  merchant  removes 
to  a  foreign  country,  for  commercial  purposes,  in  time  of  peace,  it  is  reasonable 
to  believe,  that  he  intends  to  remain  only  so  long  as  he  can  carry  on  his  trade, 
law  fully  and  advantageously,  without  a  violation  of  duty  to  the  country  of  his  af- 
fections and  his  allegiance  ;  but  the  intervention  of  a  war  between  the  country  of 
his  residence  and  his  own  country,  renders  the  prosecution  of  a  trade,  such  as  he 
alone  contemplated,  no  longer  practicable.  Such  a  war,  we  are  bound  to  believe, 
removes  the  causes,  and  supersedes  the  motives  that  alone  induced  his  foreign  resi- 
dence ;  and  an  intention  of  continued  residence,  under  so  material  a  change  of  cir- 
cumstances, ought  no  longer  to  be  imputeil  to  him.  On  the  contrary,  when  we 
consider  that  the  right  of  the  merchant  to  remain  and  prosecute  the  trade  in  which 
he  was  engaged,  is  now  forfeited — that  he  lias  become  the  enemy  of  the  country  in 
which  he  resides — that  his  continuance  in  it  will,  probably,  expose  him  to  many 
and  serious  Inconveniences — that  his  interests  and  his  duty  and  most  probably, 
his  inclinations,  call  him  home — it  seems,  not  only  a  fair,  but  almost  a  necessary 
inference,  that  the  chau'^e  in  his  situation  has  produced  a  change  of  his  inten- 
tions ;  it,  therefore,  justifies  the  presumption,  that  he  means  not  to  continue,  but 
as  soon  as  practicable,  to  terminate  his  residence.  It  is  alike  imnolitic  ami  un- 
just, to  build  any  argument  upon  his  first  residence,  of  his  intention  to  throw  otf 
permanently  his  oi'iginal  character  and  allegiance. 


320  EFFECTS   OF    WAli    AS    BETWEEN    ENEMIES.  [PAKT  II. 


THE   "  HARMONY." 

Hiuii  Court  ok  .Vomiualty,  1800. 

(2  C.  liobinson,  322.) 

In  considering  the  evidence  which  shall  constitute  doniicil,  time  is  the  mrst  im- 
liorcant  ingredient. 

This  was  one  of  severiil  American  vessels  in  wliieh  a  (;laini  had 
been  reserved  for  part  of  tlie  cargo,  on  farther  proof  to  be  made  of 
the  national  character  of  G.  W.  ]Mnrray,  who  appeared  in  the  ori<^inal 

"  The  very  commerce,  in  which  he  was  engaged,  may  have  had  a  direct  relation  to 
the  interest  of  his  own  country,  may  have  tended  to  augment  its.  resources  and 
wealth.  No  nation  that  takes  an  interest  in  the  prosperity  of  its  own  commerce, 
can  wish  to  restrain  its  own  citizens  from  residing  abroad  for  commercial  pur- 
poses ;  nor  will  it  hastily  construe  such  a  residence  into  a  change  of  national 
character,  to  tlie  certain  injury  of  the  individual,  and  probably  to  its  own.  Xor 
is  tliis  all.  It  is  the  doctrine  of  the  most  approved  writers  on  the  law  of  nations, 
that  a  citizen  of  one  country,  who  is  resiling,  but  not  naturalize!,  in  another,  is 
not  incorporated  into  the  foreign  society  ;  but  is  still  considered  as  a  member  of 
that  to  which  he  originally  belonged.  If  a  war  breaks  out  between  tlui  two  nations 
he  is  to  be  permitted,  and  it  is,  in  truth,  liis  duty  to  restore  him  self,  by  a  speedy 
removal,  to  his  proper  allegiance.  It  is  his  duty  to  free  himself  from  a  position, 
that,  by  its  voluntary  continuance,  would  render  him  an  enemy  of  his  own  country; 
and  we  are  bound  to  presume  that  he  will  avail  himself  of  the  earliest  means  and 
opportunity  to  discharge  a  duty,  that  the  dictates  of  patriotism,  and  the  law  of  his 
allegiance,  alike  Impose.  Whilst  this  presumption  continues  in  force,  it  is  unjust 
1o  consider  him  as  an  enemy.  It  is  a  harsh  proceeding  of  his  native  country  to 
confiscate  the  property  of  one,  who,  for  aught  that  appears,  may  deserve  to  b(j 
ranked  among  its  most  attached  and  devoted  citizens.  But  this  presumption,  that, 
while  it  exists,  should  shield  his  property  from  condemnation,  continues  to  exist, 
not  only  till  he  is  proved  to  have  a  knowledge  of  the  war,  but  until  a  reasonable  and 
sufficient  time  has  been  allowed  him  to  disengage  himself  and  eff(>ct  a  removal.  It 
exists  until  there  is  evidence,  that  after  a  knowledge  of  the  war,  he  had  continued 
to  reside,  without  compulsion,  or  justifiable  cause,  in  the  hostile  country.  AVhen 
it  is  proved  to  be  his  real  intention  to  change  permanently  his  national  character  ; 
where  it  is  his  choice  to  remain  in  the  hostile  country,  there  is  no  injustice  or 
harshness  in  treating  him  as  an  enemy  ;  but  if,  while  prosecuting  his  business  in  a 
foreign  country,  he  retained  his  attachment,  and  contemplated  a  return,  to  his 
own,  it  is  pressing  admiralty  principles  too  far  ;  it  is  drawing  conclusions  that  the 
liremises  do  not  warrant,  to  infer  absolutely  his  intention  to  continue  in  a  country 
which  has  become  hostile,  m^^rely  from  his  residence  and  trading  in  that  country 
while  it  was  friendly,  and  to  punish  him  by  a  confiscation  of  his  goods,  as  if  he 
had  been  fully  eonvicted  of  this  intention. 

"The  Chief-Justice  concluded  by  remarking,  that  hi  applying  the  principlco  he 


CHAP.  II.]  THE    '•  HARMONY."  327 

case,  as  a  partner  of  a  house  of  trade  in  America,  but  personally 
resident  in  France ;  restitution  had  been  decreed  in  the  several  claims 
to  the  house  of  trade  in  America,  with  a  reservation  of  the  share  of 
this  partner. 

G.  W.  Murray,  a  partner  in  a  house  of  trade  in  ^;e\v  York,  had 
gone  to  France,  in  1794,  as  supercargo  of  a  vessel,  in  behalf  of  his 
firm,  to  there  dispose  of  the  cargo;  but  with  the  exception  of  a  brief 
visit  to  America  in  1795-96,  he  conthiued  to  reside  in  France,  and 
to  receive  and  dispose  of  cargoes  sent  out  from  New  York. 

At  the  time  of  the  first  trial,  Mr.  G.  W.  Murray  had  not  been  in 
France  a  year ;  but  from  the  evidence  of  letters,  etc..  Sir  W.  Scott 
thought  the  intention  was  to  form  a  permanent  residence  and  cor- 
respondence in  France.  This  belief  was  strengthened  by  the  fact 
that  Mr.  Murray  had  returned  to  France  in  1790  and  remained  there 
till  1800.  Hence  his  return  to  America  in  1795-9G  was  probably  but 
temporary,  and  he  was  considered  to  have  had  a  residence  in  France 
for  six  years. 

Judgment, — Sir  W.  Scott,  (Extract) : — 

"  This  is  a  question  which  arises  on  several  parcels  of  property 
claimed  on  behalf  of  G.  ^V.  Murray  ;  and  it  is  in  all  of  them  a  ques- 

had  laid  down  to  the  claimants,  the  court  ought  to  be  regulated  by  the  conduct  they 
had  pursued,  after  a  knoa-led'je  of  the  war.  If  they  had  continued  their  residence 
and  trade,  after  a  knowledge  of  the  war,  it  was  clear,  that  their  claim  to  a  restitu- 
tion could  not  be  sustained;  but  if  they  had  taken  immediate  measures  for  return- 
ing to  the  United  States,  and  liad  since  actually  returned,  or  had  assigned  sufficient 
reasons  for  not  returning,  tlieir  property  was,  in  his  judgment,  callable  of  restitu- 
tion, and  that  by  this  discrimination  some  of  the  claimants,  although  not  all,  were 
entitled  to  the  restoration  of  their  goods. 

'■  In  the  course  of  this  opinion,  which  I  have  reluctantly  abridged,  the  Chief- 
Justice  subjected  most  of  the  leading  decisions  of  the  English  admiralty  on  the 
question  of  domicil,  to  a  strict  and  searching  analysis,  and  he  arrived  at  the  con- 
clusion that  they  gave  no  support  to  the  assertion  that  Sir  W.  Scott  had  ever  ad- 
vanced or  intimated,  or  would  probably  maintain,  a  doctrine  repugnant  to  that  he 
sought  to  establish.  Indeed,  the  exact  case,  under  circumstances  analogous  to 
those  in  which  it  was  presented  to  the  Supreme  Court  of  the  United  States,  seems 
never  to  have  arisen  in  the  courts  of  England. 

"  It  is  necessary,  in  conclusion,  to  remark  that  the  claimants  in  the  case  which 
was  the  subject  of  this  controversy,  although  naturalized  citizens  of  the  United 
States,  were  native-born  subjects  of  Great  Brilain,  and  consequently  their  residence 
in  England  was  not  properly  the  acquisition  of  a  new  domicil,  but,  by  its  necessary 
effect,  a  restoration  to  their  original  allegiance.  Whether  the  reasoning  and  views 
of  the  Chief-.Jastice  were  apiplicable  in  their  full  extent,  if  at  all,  to  such  a  case, 
may  be  seriously  doubted;  and  these  doubts  may  be  felt  even  by  those,  who  assent 
without  difficulty  to  the  soundness  and  truth  of  his  doctrine,  when  limited  in  its 
application  to  native  subjects  or  citizens,  residing  merely,  and  not  naturalized,  in 
a  foreign  country." 


328  EFFIXTS    OF    "WAR    AS    ^.ET^YEEX    ENE.MIES.       [PART  II. 

tion  of  residence  or  domicil,  which  I  liave  often  had  occasion  to  ob- 
serve, is  in  itself  a  question  of  considerable  difficulty,  depending  on 
a  great  variety  of  circumstances,  hardly  capable  of  being  defined  by 
any  general  precise  rules.  The  active  spirit  of  eonunerce  now  abroad 
in  the  world,  still  farther  increases  this  difficulty  by  increasing  the 
variety  of  local  situations,  in  which  the  same  individual  is  to  be 
found  at  no  great  distance  of  time ;  and  by  that  sort  of  extended  cir- 
culation, if  I  may  so  call  it,  by  which  the  same  transaction  commu- 
nicates with  different  countries,  as  in  the  present  cases,  in  which  the 
same  trading  adventures  have  their  origin  (perhaps)  in  America, 
travel  to  France,  from  France  to  England,  from  England  back  to 
America  again,  without  enabling  us  to  assign  accurately  the  exact 
legal  effect  of  the  local  character  of  every  particular  portion  of  this 
divided  transaction. 

"  In  deciding  such  cases,  the  necessary  freedom  of  commerce  im- 
l^oses  likewise  the  duly  of  a  particular  attention  and  delicacy;  and 
strict  principle  of  law  must  not  be  pressed  too  eagerly  against  it ; 
and  I  have  before  had  occasion  to  remark,  that  the  particular  situa- 
tion of  America,  in  respect  to  distance,  seems  still  more  particularly 
to  entitle  the  merchants  of  that  country  to  some  favourable  distinc- 
tions. They  live  at  a  great  distance  from  Europe ;  they  have  not 
the  same  open  and  ready  and  constant  correspondence  with  individ- 
uals of  the  several  nations  of  Europe,  that  these  persons  have  with 
each  other ;  they  are  on  that  very  account  more  likely  to  have  their 
mercantile  confidence  in  Europe  abused,  and  therefore  to  have  more 
frequent  calls  for  a  personal  attendance  to  their  own  concerns ;  and 
it  is  to  be  expected  that  when  the  necessity  of  their  affairs  calls  them 
across  the  Atlantic,  they  should  make  rather  a  longer  stay  in  the 
country  wliere  they  are  called,  than  foreign  merchants  who  step 
from  a  neighbouring  country  in  Europe,  to  which  every  day  offers  a 
convenient  opportunit}^  of  return. 

"In  considering  this  particular  case,  it  may  iiot  be  improper  to 
remark,  that  circumstances  occur  in  the  evidence  that  address  them- 
selves forcibly  to  private  commiseration,  remarking,  however,  at  the 
same  time,  that  public  duty  can  allow  only  a  very  limited  effect  to 
such  considerations,  and  still  less  to  another,  tliat  has  been  pressed 
upon  me,  that  the  money,  if  restored,  is  to  go  in  payment  of  debts 
due  to  British  creditors,  from  the  bankrupt  estate  of  this  unfortunate 
jierson. 

"31y  business  is  to  inquii-e  wliether  he  is  entitled  to  recover  it, 
witliout  regard  to  tlie  i)robable  application  of  it,  if  it  finds  its  way 
again  into  liis  possession. 

"  Of  the  few  prmciples  that  can  be  laid  down  generally,  I  may 


CHAP,  ir.]  THE    "  IIAUMONY."  32'J 

venture  to  hold,  tliat  time  is  the  grand  iiiivredient  in  constitutin-,^ 
domicil.  I  think  that  hardly  enong-h  is  attributed  to  its  effects;  in 
most  cases  it  is  unavoidably  conclusive  ;  it  is  not  unfreqnently  said, 
that  if  a  person  comes  only  for  a  special  purpose,  that  shall  not  fix  a 
domicil.  This  is  not  to  be  taken  in  an  uniiualified  latitude,  and  with- 
out some  respect  had  to  the  time  which  such  a  purpose  may  or  shall 
ocGui)y  ;  for  if  the  purpose  be  of  a  nature  that  /nay,  prohahhi,  or  r^e.s- 
actxdlh/  detain  the  person  for  a  great  length  of  time,  I  cannot  but 
think  that  a  general  residence  might  grow  upon  the  special  purpose. 

"  A  special  puri)ose  may  lead  a  man  to  a  country,  where  it  shall 
detain  him  the  whole  of  his  life.  A  man  comes  here  to  follow  a  law- 
suit, it  may  happen,  and  indeed  is  often  used  as  a  ground  of  vulgar 
and  unfounded  reproach  (unfounded  as  matter  of  just  reproach 
though  the  fact  may  be  true,)  on  the  laws  of  this  country,  that  it 
may  last  as  long  as  himself.  Some  suits  are  famous  in  our  juridical 
history  for  having  even  outlived  generations  of  suitors.  I  cannot 
but  think  that  against  such  a  long  residence,  the  plea  of  an  original 
special  purpose  could  not  be  averred;  it  must  be  inferred  in  such  a 
case,  that  other  purposes  forced  themselves  upon  him  and  mixed 
themselves  with  his  original  design,  and  impressed  upon  him  the 
character  of  the  country  where  he  resided. 

"  Suppose  a  man  comes  into  a  belligerent  country  at  or  before 
the  beginning  of  a  war;  it  is  certainly  reasonable  not  to  bind  him 
too  soon  to  an  acquired  character,  and  to  allow  him  a  fair  time  to 
disengage  himself ;  but  if  he  continues  to  reside  during  a  good  part 
of  the  war,  contributing,  by  payment  of  taxes,  and  other  means,  to 
the  strength  of  that  country,  T  am  of  opinion,  that  he  could  not  plead 
his  special  purpose  with  any  effect  against  the  rights  of  hostility. 
If  he  could,  there  would  be  no  sufficient  guard  against  the  fraud  and 
abuses  of  masked,  pretended,  original,  and  sole  purposes  of  a  long- 
continued  residence.  There  is  a  time  which  will  estop  such  a  plea ; 
no  rule  can  fix  the  time  a  pHori,  but  such  a  time  there  must  be. 

"  In  proof  of  the  efficacy  of  mere  time,  it  is  not  impertinent  to 
remark,  that  the  same  quantity  of  business,  which  would  not  fix  a 
domicil  in  a  certain  space  of  time,  would  nevertheless  have  that 
effect,  if  distributed  over  a  large  space  of  time.  Su[)pose  an  .Ameri- 
can comes  to  Europe,  with  six  contemporary  cargoes,  of  which  he 
had  the  present  care  and  management,  meaning  to  return  to  America 
immediately;  they  would  form  a  different  case  from  that,  of  the  same 
American,  coming  to  any  particular  coinitry  of  Europe,  with  one 
cargo,  and  fixing  himself  there,  to  receive  five  remaining  cargoes, 
one  in  each  year  successively.  I  repeat,  that  time  is  the  great  agent 
in  this  matter;  it  is  to  betaken  in  a  coni[)ound  ratio,  of  the  time  and 


330  EFFECTS    OF    Vv-AU    AS    BETWEEN    ENEMIES.         [I'ART  11. 

the  occupation,  with  a  great  preponderance  on  the  article  of  time  : 
he  the  occupation  wliat  it  may,  it  cannot  happen,  hut  with  few  ex- 
ceptions, that  mere  length  of  time  shall  not  constitute  a  domicil." 


BEXTZEX  T.  BOYLE. 

Sl'pueme  C()Uut  of  the  Uxited  States,  1815. 
(9  Crunch,  101.) 

The  produce  of  enemy  soil  while  uusold  is  hostile,  whatever  be  the  domicil  of 
the  ownei'  of  the  soil. 

Judgment, — Marshall,  C.  J. : — 

"  The  Island  of  Santa  Cruz,  belonging  to  the  kingdom  of  Den- 
mark, was  suVjdued  during  the  late  war,  by  the  arms  of  his  Britannic 
Majesty.  Adrien  Benjamin  Bentzen,  an  officer  of  the  Uanisii 
government,  and  a  proprietor  of  land  therein,  withdrew  from  the 
island  on  its  surrender,  and  has  since  resided  in  Denmark.  The 
property  of  the  mhabitants  being  secured  to  them,  he  still  retained 
his  estate  in  tlie  island  under  the  management  of  an  agent,  who 
shipped  thirty  hogsheads  of  sugar,  the  product  of  that  estate,  on 
board  a  British  sliip,  to  a  commercial  house  in  London,  on  account 
and  risk  of  the  said  A.  B.  Bentzen.  On  her  passage  she  was  cap- 
tured by  the  American  privateer,  the  Cornet^  and  brought  into  Bal- 
timore, where  the  vessel  and  cargo  were  libelled  as  enemy  property. 
A  claim  for  these  sugars  was  put  in  by  Bentzen  ;  but  they  were  con- 
demned with  the  rest  of  the  cargo  ;  and  the  sentence  was  affirmed 
by  the  circuit  court.     Tiie  claimant  then  appealed  to  this  court. 

Some  doubt  has  been  suggested  whether  Santa  Cruz,  while  in  the 
possession  of  Great  Britain,  could  pr()[)erly  be  considered  as  a  Urilish 
island.  But,  for  this  doubt  there  can  be  no  foundation.  Although 
acquisitions  made  during  war  are  not  considered  as  permanent  until 
confirmed  by  a  treaty,  yet  to  every  commercial  and  belligerent  pur- 
pose, they  are  considered  as  a  part  of  the  domain  of  the  conqueror, 
so  long  as  he  retains  the  possession  and  government  of  them.  The 
island  of  Santa  Cruz,  after  its  capitulation,  remained  a  IJritisli  island 
until  it  was  restored  to  Denmark. 

'■  Must  the  product  of  a  plantation  in  that  island,  shipped  ])y  the 
pro[)i-ietor  himself,  who  is  a  Dane  residing  in  Denmark,  be  con- 
sidered as  Britisli,  and  therefore  enemy  property? 

"In  arguing  this  question,  the  counsel  for  the  claimant  has  made 


CHAP,  ir.]  BENTZEN   V.  BOYLE.  3ol 

two  points.  1.  That  this  case  does  not  come  witliin  the  rule  a[)i)U- 
cable  to  shipments  from  an  enemy  country,  even  as  hiid  down  in  tho 
Britisli  courts  of  admiralty.  2.  That  the  rule  has  not  been  rightly 
laid  down  in  those  courts  and  consequently  will  not  be  adopted  in 
this.  1.  Does  the  rule  laid  down  in  the  British  courts  of  admiralty 
embrace  this  case  V 

"  It  appears  to  the  court  that  the  case  of  the  Phoenix  ^  is  precisely 
ill  point.  In  that  case  a  vessel  was  captured  on  a  voyage  from  Suri- 
nam to  Holland,  and  a  part  of  the  cargo  was  claimed  by  persons 
residing  in  Germany,  then  a  neutral  country,  as  the  produce  of  their 
estates  in  Surinam. 

"  The  counsel  for  the  captors  considered  the  law  of  the  case  as 
entirely  settled.  The  counsel  for  the  claimant  did  not  controvert 
this  position.  They  admitted  it ;  but  endeavoured  to  extricate  their 
case  from  the  general  principle  by  givhig  it  the  protection  of  the 
treaty  of  Amiens.  In  pronouncing  his  opinion,  Sir  William  Scott 
lays  down  the  rule  thus :  '  Certainly  nothing  can  be  more  decided 
and  fixed,  as  the  principles  of  this  coui't  and  the  Su^jreme  Court  upon 
very  solenni  arguments,  than  that  the  possession  of  the  soil  does  im- 
l)ress  \\\)(^\\  the  owner  the  character  of  the  country,  whatever  the 
local  residence  of  the  owner  may  be.  This  has  been  so  re[)eatedly 
decided,  both  in  this  and  the  Superior  Court,  that  it  is  no  longer  open 
to  discussion.  No  question  can  be  made  on  the  point  of  law,  at  this 
day.' 

"  Afterwards,  in  the  case  of  the  Yrow  Anna  Catharina,  5  C.  Rob., 
167,  Sir  William  Scott  lays  down  the  rule,  and  states  its  reason. 
'  It  cannot  be  doubted,'  he  says,  '  that  there  are  transactions  so  radi- 
cally and  fundamentally  national  as  to  impress  the  national  charac- 
ter, independent  of  peace  or  war,  and  the  local  residence  of  the  parties. 
The  produce  of  a  person's  own  plantation  in  the  colony  of  the  enemy, 
though  shipped  in  time  of  peace,  is  liable  to  be  coisidered  as  the 
property  of  the  enemy,  by  reason  that  the  proprietor  has  incor- 
porated himself  with  the  permanent  interests  of  the  nation  as  a 
holder  of  the  soil,  and  is  to  be  taken  as  a  part  of  that  country,  in 
that  particular  transaction,  independent  of  his  own  personal  resi- 
dence and  occupation.' 

"  This  rule  laid  down  with  so  much  precision,  does  not,  it  is  con- 
tended, embrace  Mr.  Bentzen's  claim,  because  he  has  not  'incorporated 
himself  with  the  permanent  interests  of  the  nation.'  He  acquired 
the  property  while  Santa  Cruz  Avas  a  Danish  colony,  and  he  with- 
drew from  the  island  when  it  became  British. 

1  5  C.  Eob.,  20. 


332  EFFECTS    OF    WAR    AS    Bi:T\VE::N    ENEMIES.         [I'AET  U. 

"This  distinelioii  does  not  appear  to  the  court  to  be  a  sound  one. 
The  identiticatioii  of  the  national  character  of  the  owner  with  that 
of  the  soil,  in  the  particular  transaction,  is  not  placed  on  the  disposi- 
tion with  which  he  acquires  the  soil,  or  on  his  general  character. 
The  acquisition  of  land  in  Santa  Cruz  binds  him,  so  far  as  respects 
that  land,  to  the  fate  of  Santa  Cruz,  whatever  its  destiny  may  be. 
While  that  island  belonged  to  Denmark,  the  produce  of  the  soil, 
while  unsold,  was,  according  to  this  rule,  Danish  property,  what- 
ever might  be  the  general  character  of  the  particular  proprietor. 
"When  the  island  became  British,  the  soil  and  its  produce,  while  that 
produce  remained  unsold,  were  British. 

"The  general  commercial  or  political  character  of  Mr.  Bentzen 
could  not,  according  to  this  rule,  affect  this  particular  transaction. 
Although  incorporated,  so  far  as  respects  his  general  character,  with 
the  permanent  interests  of  Denmark,  he  was  incorporated  so  far  as 
respects  his  plantation  in  Santa  Cruz,  with  the  permanent  interests 
of  Santa  Cruz,  which  was  at  that  time  British ;  and  though  as  a 
Dane,  he  was  at  war  with  Great  Britain,  and  an  enemy,  yet,  as  a 
proprietor  of  land  in  Santa  Cruz,  he  was  no  enemy;  he  could  ship 
his  produce  to  Great  Britain  in  perfect  safety. 

"  The  case  is  certainly  within  the  rule  as  laid  down  in  the  Bi'itish 
courts.  The  next  inquiry  is  :  how  far  that  rule  will  be  adopted  in 
this  country  ? 

"  The  law  of  nations  is  the  great  source  whence  we  derive  tliose 
rules,  respecting  neutral  and  belligerent  rights,  which  are  recognized 
by  all  civilized  and  commercial  states  throughout  Europe  and  America. 
This  law  is  in  part  unwritten,  and  in  part  conventional.  To  ascer- 
tain that  Avhich  is  unwritten,  we  resort  to  the  great  principles  of 
reason  and  justice;  but,  as  these  principles  will  be  ditferentl}-  un- 
derstood by  different  nations  under  different  circumstances,  we  con- 
sider them  as  being  in  some  degree,  fixed  and  rendered  staV)le  by 
a  series  of  judicial  decisions.  The  decisions  of  the  courts  of  every 
country,  so  far  as  they  are  founded  on  a  law  common  to  every 
country,  will  be  received,  not  as  authority,  but  with  respect.  The 
decisions  of  the  courts  of  every  country  show  how  the  law  of  nations, 
in  the  given  case,  is  understood  in  that  country,  and  will  be  con- 
sidered in  adopting  the  rule  which  is  to  prevail  in  this. 

"Without  taking  a  comparative  view  of  the  justice  or  fairness  of  the 
rules  estaljlished  in  the  British  courts,  and  of  those  established  in  the 
courts  of  other  nations,  there  are  circumstances  not  to  he  excluded  from 
consideration,  which  give  to  those  rules  a  claim  to  our  attention,  thnt 
we  cannot  entirely  disregard.  The  United  States  having,  at  one 
time,  formed  a  component  part  of  the  British  Empire,  their  prize  law 


CHAT,   rr.]  BKNTZEX    V.  BOVLE.  3G3 

was  our  prize  law.  When  we  separated,  it  continued  to  be  our  prize 
law,  so  tar  as  it  was  adapted  to  our  eireunistances  and  was  not 
varied  by  the  power  wliich  was  ca[)al)le  of  changing  it. 

"  It  will  not  be  advanced,  in  consequence  of  this  foi-nier  relation 
between  the  two  countries,  that  any  obvious  misconstruction  of 
public  law  made  by  the  Uritish  courts,  will  be  considered  as  forming 
a  rule  for  the  American  courts,  or  that  any  recent  rule  of  the  lirilish 
courts  is  entitled  to  more  respect  than  the  recent  rules  of  other 
countries.  IJut  a  case  professing  to  be  decided  on  ancient  princi[)les 
will  not  be  entirely  disregarded,  unless  it  be  very  unreasonable,  or  be 
founded  on  a  construction  I'cjected  by  other  nations. 

"  The  rule  laid  down  in  the  Phcenix  is  said  to  be  a  recent  rule,  be- 
cause a  case  solemnly  decided  before  the  Lords  Commissioners  in 
1783,  is  (pioted  in  the  margin  as  its  authority.  But  that  case  is  not 
suggested  to  have  been  determined  contrary  to  former  practice  or 
former  opinions.  Nor  do  we  perceive  any  reason  for  supposing  it  to 
be  contrary  to  the  rule  of  other  nations  in  a  similar  case. 

"  The  opinion  that  the  ownership  of  the  soil  does,  in  some  degree, 
connect  the  owner  with  the  property,  so  far  as  respects  that  soil,  is 
an  opinion  which  certainly  prevails  very  extensively.  It  is  not  an 
unreasonable  opinion.  Personal  property  may  follow  the  person 
anywhere ;  and  its  character,  if  found  on  the  ocean,  may  dejjcnd  on 
the  domicil  of  the  owner.  But  land  is  fixed.  Wherever  the  owner 
may  reside,  that  land  is  hostile  or  friendly  according  to  the  condition 
of  the  country  in  wdiich  it  is  placed.  It  is  no  extravagant  perversion 
of  principle,  nor  is  it  a  violent  offense  to  the  course  of  human  opinion 
to  say  that  the  proprietor,  so  far  as  respects  his  interest  hi  this  land, 
partakes  of  this  character ;  and  that  the  produce,  while  the  owner 
i-emains  unchanged,  is  subject  to  the  same  disabilities.  In  condemn- 
ing the  sugars  of  ]Mr.  Bentzen  as  enemy  property,  this  court  is  of 
opinion  that  there  was  no  error,  and  the  sentence  is  affirmed  with 
costs." 


EFFECTS    OF    WAU    AS   BETWEEN   ENEMIES.         [PAET  U. 


THE  "PRIZE  CASES." 
Supreme  Court  of  the  United  States,  1862. 

(2  ni((rk.,  (571.) 

The  property  of  all  persons  resident  wilhiii  the  territory  of  the  states  in  rebellion, 
during  the  civil  war  in  the  United  States,  and  engaged  in  commerce  upon  the  sea, 
is  enemy  propei-ty  and  subject  to  condemnation  as  prize. 

II.  "  We  come  now  to  the  consideration  of  the  second  qnestion. 
"What  is  included  in  the  term  'enemies'  property?' 

"  Is  the  property  of  all  persons  residing  within  the  territory  of  the 
states  now  in  rebellion,  captured  on  the  high  seas,  to  be  treated  as 
'  enemy's  property '  whether  the  owner  be  in  arms  against  the 
government  or  not  ? 

"  The  right  of  one  belligerent  not  only  to  coerce  the  other  by 
direct  force,  but  also  to  cripple  his  resources  by  the  seizure  or  de- 
struction of  his  property,  is  a  necessary  result  of  a  state  of  war. 
Money  and  wealth,  the  products  of  agriculture  and  connnerce,  are 
said  to  be  the  sinews  of  war,  and  as  necessary  in  its  conduct  as 
numbers  and  physical  force.  Hence  it  is,  that  the  laws  of  war  rec- 
ognize the  right  of  a  belligerent  to  cut  these  sinews  of  the  power  of 
the  enemy,  by  capturing  his  property  on  the  high  seas. 

"The  appellants  contend  that  the  term  'enemy'  is  properly  ap- 
plicable to  those  only  who  are  subjects  or  citizens  of  a  foreign  state 
at  war  with  our  own.  They  quote  from  the  pages  of  the  common 
law,  which  say,  '  that  persons  A\'ho  wage  war  against  the  king  may 
be  of  two  kinds,  subjects  or  citizens.  The  former  are  not  proper 
enemies,  but  rebels  and  traitors ;  the  latter  are  those  that  come 
properly  under  the  name  of  enemies.' 

"  They  insist,  moreover,  that  the  President  himself,  in  his  proc- 
lamation, admits  that  great  numbers  of  the  persons  residing  within 
the  territories  in  the  possession  of  the  insurgent  government,  are 
loyal  in  their  feelings,  and  forced  by  compulsion  and  the  violence  of 
the  rebellious  and  revolutionary  party  and  its  '■  de  facto  goverinnent ' 
to  submit  to  theii-  laws  and  assist  in  their  scheme  of  revolution ; 
that  the  acts  of  the  usurping  government  cainiot  legally  sever  the 
bond  of  their  allegiance;  they  have,  therefore,  a  co- relative  right  to 
claim  the  protection  of  the  government  for  their  persons  and  prop- 
erty, and  to  be  treated  as  loyal  citizens,  till  legally  convicted  of 


CHAP.  J  I.]  THE    "  PRIZE   CASES."  335 

having-  I'enouiiced  their  alleo-jance  and  made  Avar  against  the  govern- 
ment by  treasonably  resisting  its  hiws. 

"They  contend,  also,  tliat  insurrection  is  the  act  of  indivi(bials, 
and  not  of  a  government  or  sovereignty  ;  tliat  tlie  individuals  en- 
gaged are  the  subjects  of  law.  That  confiscation  of  their  property 
can  be  effected  only  under  a  nmnicipal  law.  That  by  the  law  of  the 
land  such  confiscation  camiofc  take  place  without  the  conviction  of 
the  owner  of  some  offence,  and  finally  that  the  secession  ordinances 
are  nullities  and  hiefl'ectual  to  release  any  citizen  from  his  allegiance 
to  the  national  government,  and  consequently  that  the  constitution 
and  laws  of  the  United  States  are  still  operative  over  persons  in  all 
the  states  for  punishment  as  well  as  protection. 

"  This  argument  rests  on  the  assumption  of  two  propositions,  each 
of  which  is  without  foundation  on  the  established  law  of  nations. 

"  It  assumes  that  where  a  civil  war  exists,  the  party  belligei-ent 
claiming  to  be  sovereign,  cannot  for  some  unknown  reason,  exercise 
the  rights  of  belligerents,  although  the  revolutionary  party  may. 
Being  sovereign,  he  can  exercise  only  sovereign  rights  over  the  other 
party. 

"The  insurgents  may  be  killed  on  the  battle-field  or  by  the  ex- 
ecutioner ;  his  property  on  land  may  be  confiscated  under  the  munic- 
ipal law;  but  the  connnerce  on  the  ocean,  which  supi)lies  the  rebels 
with  means  to  support  the  war,  cannot  be  made  the  subject  of  capture 
under  the  laws  of  war,  because  it  is  'unconstitutional ' ! ! !  Xow,  it 
is  a  proposition  never  doubted,  that  the  belligerent  party  who  claims 
to  be  sovereign,  may  exercise  both  belligerent  and  sovereign  rights  ; 
(see  4  Cr.,  272).  Treating  the  other  party  as  a  belligerent  and  using 
only  the  milder  modes  of  coercion  which  the  law  of  nations  has  in- 
troduced to  mitigate  the  rigors  of  war,  cannot  be  a  subject  of  com- 
plaint by  the  party  to  whom  it  is  accorded  as  a  grace  or  granted  as 
a  necessity.  We  have  shown  that  a  civil  war  such  as  that  now 
waged  between  the  Xorthern  and  Southern  states,  is  properly  con- 
ducted according  to  the  humane  regulations  of  public  law  as  regards 
capture  on  the  ocean. 

"Under  the  very  peculiar  constitution  of  this  government,  al- 
though the  citizens  owe  supreme  allegiance  to  the  Federal  govern- 
ment, they  owe  also  a  qualified  allegiance  to  the  state  in  which  they 
are  domiciled. 

"Their  persons  and  property  are  subject  to  its  laws. 

"  Hence,  in  organizing  this  rebellion,  they  have  acted  as  states 
claiming  to  be  sovereign  over  all  persons  and  projierty  within  their 
respective  limits,  and  asserting  a  right  to  absolve  their  citizens  from 
their  allegiance  to  the  Federal  government.     Several  of  these  states 


336  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [PART   II. 

have  combined  to  form  a  new  confederac}^  claiming  to  be  acknowl- 
edged by  the  world  as  a  sovereign  state.  Their  right  to  do  so  is  now 
being  decided  by  wager  of  battle. 

"  The  ports  and  territory  of  each  of  these  states  are  held  in  hostility 
to  the  general  government.  It  is  no  loose,  unorganized  insurrection, 
having  no  defined  boundary  or  possession.  It  has  a  boundary  marked 
by  lines  of  bayonets,  and  which  can  be  crossed  only  by  force, — south  of 
this  line  is  enemies'  territory,  because  it  is  claimed  and  held  in  pos- 
session by  an  organized,  hostile  and  belligerent  power. 

"  All  persons  residing  within  this  territory  whose  property  may 
be  used  to  increase  the  revenues  of  the  hostile  power  are,  in  this 
contest,  liable  to  be  treated  as  enemies,  though  not  foreigners.  They 
have  cast  off  their  allegiance  and  made  war  on  their  government, 
and  are  none  the  less  enemies  because  they  are  traitors. 

"But  in  defining  the  meaning  of  the  term  'enemies'  property,'  Ave 
shall  be  led  into  ei-ror  if  we  refer  to  Pleta  and  Lord  Coke  for  their 
definition  of  the  word  '  enemy '.  It  is  a  technical  phrase  peculiar  to 
prize  courts,  and  depends  upon  principles  of  public  policy  as  distin- 
guislied  from  the  common  law. 

"  Whether  property  be  liable  to  capture  as  '  enemies'  property ' 
does  not  in  any  manner  depend  on  the  personal  allegiance  of  the 
owner.  '  It  is  the  illegal  traffic  that  stamps  it  as  "  enemies'  prop- 
erty." It  is  of  no  consequence  whether  it  belongs  to  an  ally  or  a 
citizen.  8  Cr.,  384.  The  owner,  ^;>;-o  Aac  f/ce,  is  an  enemy.'  3  Wash. 
C.  C.  R.,  183. 

"  The  produce  of  the  soil  of  the  hostile  territory,  as  well  as  other 
property  engaged  in  the  commerce  of  the  hostile  power,  as  the  source 
of  its  wealth  and  strength,  are  always  regarded  as  legitimate  prize, 
without  regard  to  the  domicil  of  the  owner,  and  much  more  so  if  he 
reside  and  trade  within  their  territory."  ^ 


'  For  the  first  part  of  this  case  see  §  28,  mpra. 

Domicil. — "  A  commercial  domicil,"  says  Mr.  Dicey,  "  is  such  a  residence  in  a 
country  for  the  purpose  of  trading  there  as  makes  a  person's  trade  or  business 
contribute  to  or  form  part  of  the  resources  of  such  country,  and  renders  it,  there- 
fore, reasonable  that  his  hostile,  friendly,  or  neutral  character  should  be  deter- 
mined by  reference  to  the  character  of  such  country.  Wlien  a  person's  civil 
domicil  is  in  question,  the  matter  to  be  determined  is  whether  lie  has  or  has  not  so 
settled  in  a  given  country  as  to  have  made  it  his  home.  When  a  person's  com- 
mercial domicil  is  in  question,  the  matter  to  be  determined  is  whether  he  is  or  is 
not  residing  in  a  given  country  with  the  intention  of  continuing  to  trade  there." 
(Dicey  on  Domicil,  345.) 

In  the  case  of  the  Antonia  Johanna,  1  Wheaton,  159,  the  Supreme  Court  of  the 
United  States  held,  that  the  share  of  a  partner  in  a  neutral  house  is,  jure  belli,  sub- 


CHAr.  II.]    ''  LE   HAEDY  "    COXTRE    "  LA   VOLTIGEAXTE."  337 


«LE  HARDY"  contre  "LA  VOLTIGEANTE." 

CoNSEiL  DEs  Prises,  ax  IX. 

{Piatoye  et  Duverdy,  I.,  ^21.) 

A  neutral  merchant  domiciled  in  a  belligerent  countiy  does  not  acquire  a 
belligerent  character  ;  and  his  property  at  sea  is  neutral  property. 

Le  navire  neutre  le  Hard//,  charge  pour  le  compte  de  Coste  Lan- 
freda,  citoyen  ragusais,  consul  de  llaguse  u  ^lessiiie,  avait  etc  arrcte 
par  Id  Voltlgeante.  La  France  etait  alors  en  guerre  avec  le  roi  des 
Deux-Siciles ;  il  s'agissait  de  savoir  si  Coste  Lanfreda,  citoyen  et 
consul  d'une  nation  neutre,  devait  etre  considere  comme  enneuii  ou 
comme  neutre. 

Le  CoxsEiL, — Oui  le  rapport  du  citoyen  Lacoste,  menil)re  du  Con- 
seil ; 

Au  moyen  de  ce  qu'il  resulte  principalenient  des  pieces  qu'il  n'a 
point  existe  de  contravention  serieuse  sur  la  regularite  des  pieces 
relatives  au  navire,  qui  a  etc  emraene  aussitot  apres  le  jugement  du 
tribunal  de  commerce ; — Qu'a  I'egardde  la  cargaison,  Coste  Lanfreda, 
qui  en  est  proprietaire,  exeryant  a  Messine  les  fonctions  de  consul  de 
Raguse,  a  prouve,  devant  le  tribunal  d'appel,  qu'il  etait  originaire  de 
Raguse,  ce  qui  ne  permet  pas  de  s'arreter  a  I'assertion  vague  du  capi- 
taine,  portant  qu'il  le  croyait  sujet  de  Xaples  ; — Qu  il  n'y  a  point  eu 
de  double  destination  constatee,  et  que,  lors  meme  qu'elle  Teut  etc, 
les  deux  ports  indiques  etant  egalement  I'un  neutre,  I'autre  allie,  il 
ne  pouvait  y  avoir  lieu  a  aucune  suspicion  raisonnable  ; — Que  la  loi  du 
29  nivose  an  VI,  ne  concernant  que  les  marchandises  du  cru  anglais, 

ject  to  confiscation  where  his  own  domicil  is  in  a  hostile  country.     (3  AMiarton's 
Digest.  343.) 

In  the  case  of  the  Frienclschaft,  -iAMieaton,  105,  the  court  held,  that  tlie  prop- 
erty of  a  house  of  trade  established  in  the  enemy's  country  is  condemnable  as 
prize,  whatever  may  be  the  personal  domicil  of  the  partners.  (3  Wliarton's 
Digest,  348.) 

Other  cases  on  Commercial  Domicil  are:  Bell  v.  Reicl,  1  Maul.  &Selw..  726 
(1813);  TFi7sonT.  3/aryai^,  8T.  R.,45(1798):  The  San  Jose  Indiano,2  GaU.,268 
(1814):  Tlie  Junge  Klassina,  .5  C.  Rob. .  302-304  (1804):  The  Herman.  4  C.  Rob. .  228 
(1802);  Sparenhnrgx.  Bannatyne,  1  Bos.  &  Pul.,  163  (1797);  The  Abo.  1  Spinks, 
349(1854);  The  Gerasimo,  11  Moo.  P.  C.  C,  88(1857);  The  Baltica.  11  Moo.  P.  C. 
C,  141  (1857);  3Irs.  Alexander's  Cotton,  2  WaU.,  404  (1864);  The  Flying  Scud,  6 
WaU..  263(1867). 
22 


338  EFFECTS    OF    WAR    AS   BETWEEN    ENEMIES.         [PART   II. 

ne  pnuvait  s'lippliqner  a  celles  du  cru  des  Deux-Siciles,  qui  n'ont  pas 
ete  occujxjes  ti  titve  de  coinpiC'te  par  les  troupes  de  la  Grande-Bre- 
tagne ; — Qu'alors,  pour  decider  la  qualite  de  la  cargaisou  du  navire 
le  Harcly^  il  suffit  d' examiner  si  elle  i3eut  etre  consideree  comuie  en- 
nemie,  sur  le  rapport  que  Coste  Lanfreda,  originaire  de  Raguse  et 
consul,  residait  en  cette  qualite  et  faisait  le  commerce  a  Messine, 
pays  alors  en  guerre  avec  la  1  lepublique  franyaise ; — Que  cette  ques- 
tion de  droit  public  se  resoudra  facilement  pour  la  negative,  en  faisant 
attention  que  la  residence  en  pays  etranger  n'empeche  pas  un  indi- 
vidu  d'appartenir  an  pays  qui  Ta  vu  naitre  ; — Que,  pour  ne  plus  tenir 
a  sa  patrie,  il  faut  qu'il  ait  volontairement  clioisi  une  patrie  nouvelle, 
et  qu'elle  I'ait  regulierement  adoi)te; — Que  sans  cette  renonciation 
de  sa  part  a  son  ancienne  patrie,  sans  cette  adoption  necessaire,  il  est 
toujours  ce  qu'il  etait  originairenient,  ami  des  amis,  ennemi  des  en- 
nemis  de  sa  patrie  native ;  que,  lorsque  cette  patrie  est  neutre,  il 
reste  neutre  lui-nieme,  et  doit  jouir,  pour  sa  personne  comme  pour 
ses  biens,  de  tons  les  avantages  de  la  neutralite,  parce  que  les  biens 
n'ont  pas  par  eux-memes  de  caractere  neutre  ou  hostile,  mais  pre- 
nant  toujours  celui  dont  se  trouve  revetu  leur  proprietaire ; — Que 
d'ailleurs  la  guerre  rfetant  point  une  relation  d'homme  a  homme,  ni 
des  societes  aux  individus,  mais  bien  des  Etats  entre  eux,  on  ne  pent 
forcer  a  y  prendre  part  celui  qui  n'a  pas  manifesto  la  volonte  expresse 
de  s'incorporer  a  la  puissance  belligerante  chez  laquelle  il  liabite  ; — 
Que  les  inconvenients,  les  abus  que  pent  enti-ainer  le  systeme  con- 
traire,  quelque  graves  qu'ils  soient,  sont  plus  que  balances  par  Tavan- 
tage  que  retire  le  monde  commeryant  de  la  protection  et  de  la  faveur  ac- 
cordees  paries  belligerants  an  commerce  neutre,  quelque  part  qu'il  s'ex- 
erce; — Que  les  ennemis  d'origine,  quoique  etal)lis  dans  un  pays  neutre 
et  y  faisant  le  commerce  sous  la  protection  et  le  pavilion  neutre,  ne 
perdant  point  le  caractere  ennemi,  il  serait  tout  a  la  fois  deloyal  et 
contradictoired'assimiler,  suivant  Foccurence  et  les  chances  variables 
de  la  guerre,  les  neutres  d'origine  a  des  ennemis,  uniquement  parce 
qu'ils  resideraient  et  commerceraient  en  pays  enneuiis  ; — Que  les 
publicistes,  dans  des  temps  deja  recules,  oCi  la  force  tenait  encore 
plus  ou  moins  lieu  du  droit,  ont  bien  pu  enoncer  des  faits  contraires 
et  professer  des  principes  opposes ;  mais  que  les  progres  successifs 
de  la  civilisation,  le  besoin,  universellement  senti,  de  Taccroissement 
et  de  la  liberie  des  relations  commerciales  entre  les  peuples,  en  ame- 
nant  des  idees  plus  saines,  ont  fait  prevaloir  des  idees  plus  liberales 
que  le  gouvernement  s'empresse  de  proclaraer  aujourd'hui,  comme  le 
type  de  sa  politique  et  le  gage  de  son  amour  de  I'humanite  ; — Qu'en 
reportant  ces  considerations  sur  Tespece  actuelle,  on  voit  un  i^roprie- 
taire  neutre  d'origine,  qui,  par  sa  residence  en  pays  devenu  momen- 


CHAP.  II.]  THE  PACKET   "  DE  BLLBOA."  339 

tanement  ennemi,  et  par  ses  speculations  comraerciales,  n'a  pu  perdre 
les  avail tag'es  de  sa  iieutralite,  avec  d'autaut  plus  de  raison,  qu'y  ex- 
er5ant  les  fonetions  de  consul  de  sa  patrie  originaire,  il  n'a  pas  cesse 
de  lui  appartenir  de  fait  et  de  droit,  et,  dans  aucun  cas,  ni  pour  sa 
personne  ni  pour  son  commerce,  qui  en  est  inseparable,  n'a  pu  I'-tre 
considere  comme  ennemi ; 

Decide  que  la  prise  faite  par  le  corsaire  fran5ais  la  Vbltir/eante, 
du  navire  ragusais  le  Ilardi/,  est  nulle  et  illegale,  en  fait  pleine  en- 
tiere  maiiilevee  aux  proprietaires  taut  du  navire  que  de  la  cargaisou. 


Section  34. — OwxERsnip  of  Goods  in  Tkaxsit. 


THE  PACKET  "  DE  BTLBOA." 

High  Court  of  Admiralty,  1799. 

(3  C.  Robinson,  133.) 

In  time  of  war,  or  in  contemplation  of  war,  goods  in  transitu  on  the  ocean  are 
lield  to  belong  to  the  consignee. 

This  was  a  case  of  a  claim  of  an  English  house  for  goods  shipped  on  tlie  order 
of  a  Spanish  merchant,  before  hostilities  with  Spain,  and  captured  December. 
1796.  on  a  voyage  from  London  to  Corunna.  Held,  that  the  conti'act  was  valid 
and  the  goods  were  restored. 

Judgment, — Sir  W.  Scott: — 

"  This  is  a  claim  of  a  peculiar  nature  for  goods  sent  by  British 
subjects  to  Spain,  shipped  before  hostilities,  during  the  time  of  that 
situation  of  the  two  countries,  of  which  it  was  unknown,  even  to 
our  government,  what  would  be  the  issue  between  them.  There 
appears  to  be  no  ground  to  say  that  this  contract  was  influenced  by 
speculations  on  the  prospect  of  a  war,  or  that  anything  has  been 
specially  done  to  avoid  the  risks  of  war.  It  is  shown  in  the  affida- 
vit of  the  claimant  '  that  this  is  the  constant  habit  and  practice  of 
this  trade ; '  whether  it  is  the  practice  of  the  Spanish  trade  gen- 
erally, or  only  the  particular  mode  of  these  individuals  in  carry- 
ing on  commerce  together  is  not  material,  as  the  latter  M'oiild  be 
quite  sufficient  to  raise  the  subject  of  this  claim.  The  question  is, 
in  whom  is  the  legal  title?  Because,  if  I  should  find  that  the 
interest  was  in  the  Spanish  consignee,  I  must  then  condemn,  and 
leave  tlie  British  party  to  apply  to  the  Crown  for  that  grace  and 
favor  which  it  is  always  ready  to  shew ;  the  property  being  con- 
demnable  to  the  Crown  as  taken  before  hostilities. 


o-iO  EFFECTS    OF    WAR    AS   BETWEEN    ENEMIES.         [PAET   II. 

"  The  statement  of  the  chiiiii  sets  foi'ih  that  these  goods  have  not 
been  paid  for  by  the  Spaniard ; — that  would  go  but  little  Ava^, — tliat 
alone  would  not  do;  there  must  be  many  eases  in  Avhicli  British 
}nerchants  sutler  from  capture,  by  our  own  cruisers,  of  goods 
shipped  for  foreign  account  before  the  breaking  out  of  hostilities. 
It  goes  on  to  state,  'that,  according  to  the  custom  of  the  trade,  a 
credit  of  six,  nine,  or  twelve  months  is  usually  given,  and  that  it  is 
not  the  custom  to  draw  on  the  consignee  till  the  arrival  of  the 
g(»ods;  that  the  sea  risk  in  peace  as  well  as  war  is  on  the  consignor; 
that  he  insures,  and  has  no  remedy  against  the  consignee  for  any 
accident  that  happens  during  the  voyage.'  Under  these  circum- 
stances, in  whom  does  the  property  reside  ?  The  ordinary  state  of 
connnerce  is,  that  goods  ordered  and  delivered  to  the  master  are 
considered  as  delivered  to  the  consignee,  whose  agent  the  master  is 
in  this  respect ;  but  that  general  contract  of  the  law  may  be  varied 
by  special  agreement  or  b}''  a  particular  prevailing  practice,  that  pre- 
supposes an  agreement  amongst  such  a  description  of  merchants. 
In  time  of  profound  peace,  when  there  is  no  prospect  of  approach- 
ing war,  there  would  unquestionably  be  nothing  illegal  in  contract- 
ing, that  the  Avhole  risk  should  fall  on  the  consignor,  till  the  goods 
came  into  possession  of  the  consignee.  In  time  of  peace  they  may 
divide  their  risk  as  they  please,  and  nobody  has  a  right  to  say  they 
shall  not;  it  would  not  be  at  all  illegal,  that  goods  not  shipped  in 
time  of  war,  or  in  contemplation  of  war,  should  be  at  the  risk  of 
the  shi[)per.  In  time  of  war  this  cannot  be  permitted,  for  it  would 
at  once  put  an  end  to  all  captures  at  sea;  the  risk  would  in  all  cases 
be  laid  on  the  consignor,  where  it  suited  the  purpose  of  protection ; 
on  every  contemplation  of  a  war,  this  contrivance  would  be  prac- 
ticed in  all  consignments  from  neutral  ports  to  the  enemy's  countr}^ 
to  the  manifest  defrauding  of  all  rights  of  capture ;  it  is  therefore 
considered  to  be  an  invalid  contract  in  time  of  war ;  or,  to  express  it 
more  accurately,  it  is  a  contract  which,  if  made  in  war,  has  this  ef- 
fect ;  that  the  captor  has  a  right  to  seize  it  and  convert  the  prop- 
ert}''  to  his  own  use ;  for  he  having  all  the  rights  that  belong  to  his 
enemy,  is  authorized  to  have  his  taking  possession  considered  as 
equivalent  to  an  actual  delivery  to  his  enemy;  and  the  shipper  who 
put  it  on  board  during  a  time  of  war,  must  be  presumed  to  know 
the  rule,  and  to  secure  himself  in  his  agreement  with  the  consignee 
against  the  contingence  of  any  loss  to  himself  that  can  arise  from 
capture.  In  other  wcjrds,  he  is  a  mere  insurer  against  sea  risk,  and 
he  has  nothing  to  do  with  the  case  of  capture,  the  loss  of  which  falls 
entireh'^  on  the  consignee.  If  the  consignee  refuses  payment  and 
throws  it  upon  the  shipper,  the  shipper  must  be  supposed  to  have 


CHAP.  II,]  THE   TxVCKET    '' DE    P.ILBOA."  341 

guarded  his  own  interests  against  that  hazard,  or  he  has  acted  ini- 
providently  and  without  caution. 

"Tlie  present  contract  is  not  of  this  sort;  it  stands  as  a  hiwful 
agreement,  being  made  wliilst  there  was  neither  war  nor  prospect  of 
war.  The  goods  are  sent  at  tlie  risk  of  the  shipper  :  if  they  had 
heen  lost,  on  whom  would  the  loss  have  fallen  but  on  him  ?  What  surer 
test  of  property  can  there  be  than  this?  It  is  the  true  criterion  of 
property  that,  if  you  are  the  person  on  whom  the  loss  will  fall,  you 
are  to  be  considered  as  tlie  proi)rietor.  The  bill  of  lading  very 
nnich  favors  this  account.  The  master  binds  himself  to  the 
shipper,  '  to  deliver  for  you  and  in  your  name,'  by  which  it  is  to  be 
understood  that  the  delivery  had  not  been  made  to  the  master  for 
the  consignee,  but  that  he  was  to  make  the  delivery  in  the  name  of 
the  shipper  to  the  consignee,  till  which  time  the  inference  is  that 
they  were  to  remain  the  i)roperty  of  the  shipper:  as  to  the  payment 
of  freight,  that  is  not  material,  as  in  the  end  the  purchaser  must 
necessarily  pay  the  carriage.  The  other  consideration— who  bears 
the  loss  ?  much  outweighs  that, — neither  does  the  case  put  shew  the 
contrary.  The  case  put  is — supposing  Spain  and  England  both 
neutral  and  that  these  goods  had  been  taken  l)y  the  French  and  sold 
to  great  profit,  to  whose  advantage  would  it  have  been?  The 
answer  is,  if  the  goods  were  to  continue  the  propei'ty  of  the  shipper 
till  delivery,  it  must  have  enured  to  /tis  benefit,  and  not  that  of  the 
consignee.  To  make  the  loss  fall  upon  the  shipper  in  tlie  case  of 
the  present  shi})ment  would  be  harsh  in  the  extreme.  lie  sliips  his 
goods  in  the  ordinary  course  of  traffic,  by  an  agreement  mutually 
understood  between  the  parties,  and  in  no  wise  injurious  to  the 
rights  of  any  third  party ;  an  event  subsequentl}''  happens  which  he 
could  in  no  degree  provide  against.  If  he  is  to  be  the  sutt'erer  he  is 
a  sutiierer  without  notice  and  without  the  means  of  secui-ing  him- 
self ;  he  was  not  called  upon  to  know  that  the  injustice  of  the  other 
party  would  produce  a  war  before  the  delivery  of  his  goods.  The 
consignee  may  refuse  payment,  referring  to  the  terms  of  the  con- 
tract which  was  made  when  it  was  perfectly  lawful ;  and  under 
what  circumstances  and  on  what  principles  the  shipper  could  ever 
enforce  payment  against  the  consignee  is  not  easy  to  discover.  The 
goods  have  never  been  delivered  in  Spain  ;  they  were  to  have  been 
at  the  risk  of  the  shi[)per  until  delivery,  and  this  under  a  perfectly 
fair  contract.  I  must  consider  the  property  to  reside  still  in  the 
English  merchant.  It  is  a  case  altogether  different  from  other 
cases  which  have  happened  on  this  subject  flagrcmte  hello.  I  am  of 
opinion  that,  on  all  just  considerations  of  ownership,  the  legal  prop- 
erty is  iu  the  British  merchant ;  that  the  loss  must  have  fallen  on 


342  EFFECTS   OF    WAR   AS   BETWEEN   ENEMIES.         [PART  H. 

the  shipper,  and  the  delivery  was  not  to  have  heen  made  till  the 
last  stag-e  of  the  business,  till  they  had  actually  arrived  in  Spain  and 
had  been  put  into  the  hands  of  the  consignee  ;  and  therefore  I  shall 
decree  restitution  of  the  goods  to  the  shipper." 

On  prayer  that  the  captor's  expenses  might  be  paid,  it  was 
iinswered  that  they  had  already  had  the  benefit  of  the  condemnation 
of  the  ship. 

Court. — "  I  think  there  has  been  a  great  service  performed  to  the 
shipper.  If  the  goods  had  not  been  captui'ed  they  would  have  gone 
into  the  possession  of  the  enem5^  The  captor  did  right  in  bringing 
the  question  before  the  court,  and  he  ought  by  no  means  to  be  a 
loser,  I  shall  not  give  salvage,  but  shall  direct  the  expenses  of  the 
captor  to  be  paid  out  of  the  proceeds." 


THE  «  SAN  JOSE  mDIAXO." 

U.  S.  CiKCUiT  Court  fok  Massachusetts,  1814. 

( 2  Gallison,  268.  ) 

Title  to  goods  in  transitu — stoppage  in  transitu. 

Extract  from  the  opinion  of  Story,  J. : — 

"  The  next  is  the  claim  of  Mr.  J.  Lizaur,  of ,  in  Brazil. 

"The  shipment  was  made  by  Messrs.  Dyson  Brothers  &  Co.,  and 
by  the  bill  of  lading  the  goods  are  consigned  to  Messrs.  Dyson 
Brothers  and  Finney,  Rio  de  Janeiro. 

"  The  accompanying  invoices  express  the  shipment  to  be  made  by 
order  and  for  account  of  Mr.  J.  Lizaur,  and  contain  charges  of 
freight,  commission  and  insurance,  and  an  acknowledgment  of  giving 
credit  for  three  and  six  months.  In  a  letter  of  the  4th  of  May,  1814, 
addressed  l)y  the  shippers  to  the  consignees,  they  say,  'for  Mr. 
Lizaur  Ave  open  an  account  in  our  books  here,  and  debit  him  1704^. 
Us.  7(/.  for  10  cases  of  cambrics,  etc.,  at  three  months'  credit;  we 
cannot  yet  ascertain  proceeds  of  his  hides,  etc.,  but  find  his  order 
Avill  far  exceed  amount  of  these  shipments.,  therefore  consign  tlte  wliole 
to  you.,  so  as  you  may  come  to  a  proper  ■nnderstariding.  We  have 
charged  our  usual  commission  of  two  and  a  half  per  cent,  in  the 
invoices,  but  should  you  have  made  any  stipulation  to  the  conti'ary, 
he  can  again  bring  same  to  our  del)it.  Invoices,  l)ills  of  lading  and 
])atterns  of  what  goods  are  requisite  we  forward  as  usual  in  a  small 
box  to  your  address.' 

"The  single  question  presented  in  this  claim  is,  in  whom  the  prop- 


CHAP.  II.]  THE    "SAX   JOSE    INDIAXO."  343 

erty  vested  during  its  transit;  if  in  ^Ir.  Lizaur,  tlien  it  is  to  be  re- 
stored ;  if  in  the  shippers,  then  it  is  to  be  condennied.  It  is  con- 
tended on  behalf  of  the  claimant,  that  the  goods,  having  been  i)ur- 
chased  by  order  of  Mr.  Lizaur,  the  property  vested  in  him  immedi- 
ately by  the  purchase,  and  the  contract  being  executed  by  the  sale, 
no  deliver}^  was  necessary  to  perfect  the  legal  title ;  that  nothing 
was  reserved  to  the  shippers,  but  a  mere  right  of  stoppage  in  tran- 
situ, and  that  if  they  had  been  burnt  before  the  shipment,  or  lost 
during  the  voyage,  the  loss  must  have  fallen  on  Mr.  Lizaur. 

"  As  to  the  doctrine  of  stoppage  in  transitu,  I  do  not  conceive  it 
can  apply  to  this  case.  That  right  exists  in  the  single  case  of  insolv- 
ency, and  presupposes,  not  only  that  the  property  in  the  goods  has 
passed  to  the  consignee,  but  that  the  possession  is  in  a  third  person 
in  their  transit  to  the  consignee.  It  cannot,  therefore,  touch  a  case, 
where  the  actual  or  constructive  possession  still  remains  m  the 
shipper  or  his  exclusive  agents. 

"  I  agree  also  to  the  position,  that  in  general  the  rules  of  the  prize 
court,  as  to  the  vesting  of  property,  are  the  same  as  those  of  the 
common  law,  by  which  the  thing  sold,  after  the  completion  of  the 
contract,  is  properly  at  the  risk  of  the  purchaser.  But  the  question 
still  recurs,  when  is  the  contract  executed  ?  It  is  certainly  com- 
petent for  an  agent  abroad,  who  purchases  in  pursuance  of  orders,  to 
vest  the  property,  immediately  on  the  purchase,  in  his  principal.  This 
is  the  case,  when  he  purchases  on  the  credit  of  his  principal,  or 
makes  an  absolute  appropriation  and  designation  of  the  property  for 
his  principal.  But  where  a  merchant  abroad,  in  pursuance  of  orders, 
sells  either  his  own  goods,  or  purchases  goods  on  his  o\\'n  credit 
(and  thereby  in  reality  becomes  the  owner),  no  property  in  the 
goods  vests  in  his  correspondent,  until  he  has  done  some  notorious 
act  to  divest  himself  of  his  title,  or  has  parted  with  the  possession 
by  an  actual  and  unconditional  delivery  for  the  use  of  such  corre- 
spondent. Until  that  time  he  has  in  legal  contemplation  the  exclu- 
sive property,  as  well  as  possession ;  and  it  is  not  a  wrongful  act  for 
him  to  convert  them  to  any  use,  which  he  pleases.  He  is  at  liberty 
to  contract  upon  any  new  engagements,  or  substitute  any  new  con- 
ditions in  relation  to  the  shipment.  And  this,  I  understand,  not 
only  as  the  general  law,  but  as  the  prize  law  pronounced  by  that 
high  tribunal,  whose  decisions  I  am  bound  to  obey. 

"  In  the  Ve/ins,  1814,  on  the  claim  of  Magee  and  Jones,  in  deliver- 
ing the  opinion  of  the  court,  Mr.  Justice  Washixgtox  observed  :  '  to 
effect  a  change  of  property,  as  between  seller  and  buyer,  it  is  essen- 
tial, that  there  should  be  a  contract  of  sale  agreed  to  by  both  par- 
ties, and  if  the  thing  agreed  to  be  purchased  is  to  be  sent  by  the 


3-1:4  EFFECTS    OF    AVAR    AS   BETWEEN   ENEMIES.         [PART  II. 

vendor  to  the  vendee  it  is  necessaiy  to  the  perfection  of  the  contract, 
that  it  should  be  delivered  to  the  purchaser  or  to  his  agent,  Mhich 
the  master  (of  a  ship)  to  many  purposes  is  considered  to  be.' 

"  .\nd  adverting  to  the  facts  of  that  claim  he  further  says  :  '  The 
delivery  of  the  goods  to  the  master  of  the  vessel  was  not  for  the  use 
of  Magee  and  Jones,  any  more  than  it  was  for  the  shipper  solely,  and 
consequently  it  amounted  to  nothing,  so  as  to  divest  the  property 
out  of  the  shipper,  until  Magee  should  elect  to  take  them  on  joint 
account,  or  to  act  as  the  agent  of  Jones.' " 


THE  "SALLY." 

Lords,  1795. 

( 3  C.  Robinsoiu  300,  tiote. ) 

Merchandise  shipped  to  become  the  property  of  the  enemy  on  aiTival.  if  taken 
in  transitu,  is  tohe  condemned  as  enemy's  property.  Supposing  it  was  to  be- 
come the  i^roperty  of  the  enemy  on  deUvery.  capture  is  considered  as  delivery. 

The  tSallt/  was  a  case  of  a  cargo  of  corn  shipped  March,  1793,  by 
Steward  and  Plunket,  of  Baltimore,  ostensibly  for  the  account  and 
risk  of  Conyngham,  Xesbit  &  Co.,  of  Philadelphia,  and  consigned  to 
them  or  their  assigns:  By  an  endorsement  of  the  bill  of  lading,  it 
was  further  agreed  that  the  ship  should  proceed  to  Havre  de  Grace, 
and  there  wait  such  time  as  might  be  necessary,  the  orders  of  the 
consignee  of  the  said  cargo  (the  mayor  of  Havre)  either  to  deliver 
the  same  at  the  port  of  Havre,  or  jn-oceed  therewith  to  any  one  port 
without  the  Mediterranean,  on  freight  at  the  rate  of  55.  per  bari-el  on 
delivery  at  Havre,  and  bs.  Qd.  at  a  second  port,  the  freight  to  be 
settled  by  the  shippers  in  America  according  to  agreement. 

Amongst  the  papers  was  a  concealed  letter  from  Jean  Ternant,  the 
minister  of  the  French  Republic  to  the  United  States,  in  which  he 
informs  the  minister  of  foreign  affairs  in  France.  "The  house  of 
Conyngham  &  Co.,  already  known  to  the  ministers,  by  their  fctrmer 
operations  for  France,  is  charged  by  me  to  procure  Avithout  delay,  a 
consignment  of  •22,(iOU  bushels  of  wheat,  8,U00  barrels  of  fine  flour, 
900  barrels  of  salted  beef  from  New  England.  The  conditions  stipu- 
lated are  the  same  as  those  of  the  contract  of  2d  Xovember,  1792, 
Avith  the  American  citizens.  Swan  &  Co.,  for  a  like  supply  to  be 
made  to  the  Antilles,  namely,  that  the  grain,  flour,  and  beef  are  to 
be  paid  at  the  current  price  of  the  markets  at  the  time  of  their 
being  shipped ;  that  the  freights  shall  be  at  the  lowest  course  in  the 


CHAP.  n."J  THE    "SALLY."  345 

]iorts ;  tliat  an  insurance  should  l)o  on  the  whole  ;  and  that  a  com- 
niission  of  live  per  cent,  shall  be  allowed  for  all  the  merchants' 
expenses  and  fees.  It  has  been,  moreover,  agreed,  considering  the 
actual  reports  of  war,  that  the  whole  shall  be  sent  as  American 
property  to  Havre  and  to  Nantes,  with  power  to  our  goverinnent  of 
sending  the  ships  to  other  ports  conditional  on  the  usual  freight. 
As  you  have  not  signified  to  me  to  whom  these  cargoes  ought  to  be 
delivered  in  oar  ports,  I  shall  provide  each  captain  with  a  letter  to 
the  mayor  of  the  place." 

There  was  also  a  letter  from  Jean  Ternant  to  the  mayor  of  the 
municipality  of  Havre.  "Our  government  having  ordered  me  to 
send  supplies  of  provisions  to  your  port,  I  inform  you  that  the 
bearer  of  this,  commanding  the  American  ship,  the  Salb/,  is  laden 
with  a  cargo  of  wheat,  of  which  he  Avill  deliver  you  the  bill  of 
lading." 

To  the  12th  and  COtli  interrogatories  the  master  deposed,  "that  he 
believes  the  flour  was  the  property  of  the  French  government,  and, 
on  being  unladen,  icould  have  immediately  become  the  'property  of  the 
French  government." 

In  the  argument  it  was  insisted,  on  the  part  of  the  dalnuods,  that 
llie  cai'go  was  to  be  considered  as  the  property  of  the  .Americaii 
merchants;  that  it  had  V)een  ordered  by  them,  to  be  supplied  and 
delivered  at  a  certain  place;  and  that  under  the  general  principle 
of  law,  property  was  not  considered  to  be  divested  between  the 
vendor  and  vendee  till  actual  delivery. 

It  was  contended,  that  the  contract  remained  executory  till  the 
completion  by  delivery  in  Europe ;  that  the  payment  was  contingent 
on  the  completion  of  the  contract  in  this  form,  and  that  no  money 
had  passed,  nor  any  compensation  or  agreement  had  intervened  to 
produce  an  absolute  conversion  of  the  property ;  and  it  was  [)rayed 
that  the  court  would  admit  farther  proof  to  ascertain  that  circum- 
stance. 

On  the  part  of  the  captors  it  was  replied,  that  the  general  rule  of 
law  subsisting  between  vendor  and  vendee  in  a  commercial  trans- 
action, referring  only  to  the  contracting  parties,  and  not  affecting 
the  rights  of  third  persons,  could  not  apply  to  contracts  made  in 
time  of  war,  or  in  contemplation  of  war,  where  the  rights  of  a  bellig- 
erent nation  intervened ;  that  the  eflfect  of  such  a  contract  as  the 
present  would  be  to  protect  the  trade  of  the  contracting  belligerent 
from  his  enemy;  and  that  if  it  could  be  allowed,  it  would  put  an  end 
to  all  capture.  It  was  said  to  be  a  known  princii)le  of  the  prize 
court,  that  neutral  property  must  be  proved  to  be  neutral  at  all 
periods  from  the  time  of  shipment,  without  intermission,  to  the 


346  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [P.VRT  II. 

arrival  and  subsequent  salt  in  the  port  of  the  enemy ;  that  the  twelfth 
and  twentieth  interrogatories  Avere  framed  with  this  view  to  inquire, 
"  whether  on  its  arrival,  etc.,  it  shall  and  will  belong  to  the  same 
owner  and  no  other,  etc.,"  and  a  reference  was  made  to  the  case  of 
the  Cliarles  Ilavenerswerth  in  1741,  in  which  the  form  of  attestation 
was  directed  to  be  prepared  by  the  whole  bar,  and  was  established 
in  the  present  form  to  ascertain  the  property  at  the  several  periods 
of  .s/n'pment,  and  arn'cal  in  the  enemy's  ports^ — in  cases  where  affi- 
davits were  to  be  received  to  supply  the  defects  of  the  original 
evidence,  in  the  place  of  plea  and  proof. 

The  Court : — "  It  has  always  been  the  rule  of  the  prize  courts,  that 
property  going  to  be  delivered  in  the  enemy's  country,  and  under  a 
contract  to  become  the  jDroperty  of  the  enem}^  immediately  on  arrival, 
if  taken  in  transitu,  is  to  be  considered  as  enemies'  property.  Where 
the  contract  is  made  m  time  of  peace  or  without  any  contemplation 
of  a  war,  no  such  rule  exists : — But  m  a  case  like  the  present,  where 
the  form  of  the  contract  was  framed  directly  for  the  purpose  of  ob- 
viating the  danger  apprehended  from  approaching  hostilities,  it  is  a 
rule  which  unavoidably  must  take  place.  The  bill  of  lading  expresses 
account  and  risk  of  the  American  merchants  ;  but  papers  alone  make 
no  proof,  unless  supported  by  the  depositions  of  the  master.  Instead 
of  supporting  the  contents  of  his  papers,  the  master  deposes,  '  that 
on  arrival  tlie  goods  would  become  the  jDroperty  of  the  French 
government,'  and  all  the  concealed  papers  strongly  support  him  in 
this  testimony :  The  evidentia  rei  is  too  strong  to  admit  farther 
proof.  Supposing  that  it  was  to  become  the  property  of  the  enemy 
on  delivery,  capture  is  considered  as  delivery :  The  captors,  by  the 
rights  of  war,  stand  in  the  place  of  the  enemy,  and  are  entitled  to  a 
condemnation  of  goods  passing  under  such  a  contract,  as  of  enemy's 
property.  On  every  pi-incinle  on  wliich  Prize  Courts  can  proceed, 
this  cargo  must  be  considered  as  enemy's  property. 

"  Condemned. " 


THE  "AXXA  CATIIARIXA." 

High  Couut  of  Admikai.tv,  1802. 

(4  C.  Robinson,  107.) 

Goods  going  to  become  tlie  i)roi)ci1:y  of  the  enemy  immediately  on  arnval. 
condemned. 

Tliis  v.'as  a  case  of  a  cargo  of  dry  goods,  etc.,  taken  Octoljer,  1801, 
on  a  voyage  from   Hamburgh  to  La  Guayra,  and  described  in  the 


CHAl'.  11.]  THE    "ANNA   CATHAEIXA."  347 

ostensil)le  papers  and  depositions,  "as  going  to  take  the  cliance  of 
the  market."  By  the  discovery  of  a  letter,  it  afterwards  appeared, 
that  tliese  goods  wei'e  going  under  a  special  agreement  and  contract 
with  the  Spanish  gov^ernment  of  the  Caracas. 

Judgment, — Sir  W.  Scott  : — 

*  *  *  Taking  the  shippers  to  be  neutral  merchants  "  how  does  the 
characier  of  the  goods  stand  in  this  transaction?  Was  it  not,  in  the 
first  place,  a  cargo  going  to  become  the  property  of  the  Spanish  govern- 
ment immediately  on  arrival?  Was  not  the  Spanish  goverinnent  en- 
titled to  possession?  It  was  only  on  the  violation  of  tlie  contract,  on 
the  part  of  the  Spanish  government,  that  these  goods  w^ere  to  take  the 
chance  of  the  market.  The  shippers  considered  themselves  as  bound 
to  deliver  them  to  the  use  of  the  Spanish  government,  under  the 
agreement;  as  entitled  to  the  benefit,  and  subject  to  the  obligaticms 
of  that  contract.  Were  there  any  intermediate  acts  to  be  done 
after  the  arrival  of  the  vessel?  Or  were  the  acts  such,  as  would  have 
the  effect  of  substantially  distinguishing  this  case  from  the  /Sallt/, 
and  other  cases  ?  Is  there  any  act  of  ownership  which  the  claimant 
was  at  liberty  to  exercise,  so  as  to  prevent  the  delivery?  If  not  the 
goods  must  be  considered  as  having  substantially  become,  in  itinere, 
the  property  of  the  enemy.  *  *  * 

"  It  is  said  *  *  *  that  these  goods  do  not  exactly  correspond  with 
the  enumeration  in  the  agreement,  that  thei/  are  not  contract  (joods  ; 
and  consequently,  that  without  any  violation  of  puljlic  faith,  the 
accej^tanceof  them  was  merely  optional  and  contingent.  But,  I  can- 
not tliink,  that  it  is  now  open  to  tlie  parties  to  make  this  averment ; 
when  it  is  evident,  on  the  face  of  their  own  letters,  that  they  had 
relied  on  the  clear  and  absolute  obligation  of  the  Spanish  govern- 
ment to  take  them  as  such.  *  *  * 

"These  distmctions  are,  in  my  judgment,  totally  insufficient  to 
take  the  case  out  of  the  authority  of  the  precedents  alluded  to. 
Where  the  goods  are  sent  under  a  contract  by  the  party,  it  surely 
cannot  be  permitted  to  the  claimant  himself  to  aver,  that  the  goods 
so  sent  are  not  contract  goods.  *  *  *  Under  these  circumstances,  I 
am  strongly  disposed  to  hold,  that  this  cargo  was  going  in  time  of 
war  to  the  port  of  a  belligerent,  there  to  become  the  property  of  tlie 
belligt-rent,  immediately  on  arrival,  and  that  the  legal  consequence 
of  condemnation  would  on  that  ground  alone  attach  upon  it."  ^ 

'  Only  so  much  of  this  case  is  given  as  refers  to  the  shipment  of  goods  under 
contract  to  a  belligerent  port. 


348  ETFECTS   OF    WAIl   AS   BETWEEN   ENEMIES.         [I'AllT  II. 


LES  "TROIS  FRERES." 

COMITE    DE    SaLUT    PuCLIC,    AX    III. 

(Pistoye  et  Dnvcnhj.  L.  ZTu.) 

Semble.  that,  by  the  French  rule,  the  neutral  shipper  may  assume  the  risk  of 
goods  in  ti-ansit  to  an  enemy  country. 

Le  navire  daiiois  les  Trois-Freres,  charge  fl  Genes  de  535  futailles 
d'huile,  a  destination  d'Ostende  et  Amsterdam  (qui,  en  juin  1793, 
etaient  des  pays  ennemis  de  la  France),  fut  capture  le  3  juin  1793 
par  le  corsaire  le  Passe-Partout.,  de  Bordeaux,  et  le  6  de  juillet  sui- 
vant  la  prise  fut  amenee  a  Bayonne.  Le  24  Lrumaire  an  II,  un  juge- 
ment  du  tribunal  de  commerce  de  cette  ville,  sui'  Topposition  de 
negociants  genois,  le  sieur  Stratforello  et  Cie,  qui  avaient  revendique 
une  partie  de  la  cargaison  (150  futailles),  fit  mainlevee  de  la  capture 
et  condamna  les  capteurs  a  payer  le  prix  de  la  marcliandise,  valuer 
d'Ostende  et  d'Amsterdam,  par  application  du  droit  de  presomption 
cree  par  la  loi  du  9  mai  1793,  bien  que  les  capteurs  n'eussent  pas  de- 
mande  a  user  de  cette  faculte,  qui  etait  devenue  tres-onereuse  par 
suite  du  maximum  recenniient  decrete  pour  toutes  les  denrees.  Ce 
jugement  rendu,  les  pieces  relatives  a  la  capture  des  Trots- Freves 
furent  envoyees  au  Conseil  executif  apres  la  loi  du  18  brumaire  an 
II,  et  le  Comite  de  salut  public,  quise  substitua  a  ce  conseil  executif, 
rendit  sur  cette  affaire  la  decision  suivante : 

'•  Sur  le  rapport  fait  au  Comite  de  salut  public  par  le  connnissaire 
de  la  marine  et  des  colonies,  que,  le  3  juin  1793,  le  corsaire  le  Passe- 
Partout,  de  Bordeaux,  prit  et  conduisit  a  Bayonne  le  navire  danois 
les  Trots- Freres,  ({ue  le  tribunal  de  commerce  a  Bayonne  ayant  statue 
sur  la  validite  de  la  prise  du  navire  et  I'ayant  declare  neutre,  le  capi- 
taine  a  reyu  son  fret  et  rindenniite  reglee  par  le  meme  tribunal; 

"  Que,  ne  s'agissant  plus  de  la  cargaison,  I'examen  des  pieces  qui 
la  concernent  et  I'etat  de  la  procedure  apprennent  qu'une  partie  a 
ete  chargee  par  des  Genois,  amis  de  la  Republique  franyaise,  et  pour 
leur  compte  et  risque  ;  que  c'est  la  propriete  de  citoyens  genois;  que 
consequemment  la  saisiequi  en  a  etc  faite  est  illegale  et  nulle,  et  que 
la  restitution  en  doit  etre  faite  a  leurs  proprietaires  ; 

"  Que  la  propri('tt'  de  celles  chargees  par  des  Genois  pour  le  compte 
de  qui  il  api)artien(liait  ne  se  trouvant  point  designee,  ces  marchan- 
dises  sont  de  droit  presumees  enneraies,  d6s  le  moment  qu'il  ne  se 


CHAP.  II.]  LES    "TllOIS    FlIEKES."  349 

trouve  ancune  preiive  contrain'  pr<>[)rc  a  detruiro  cotte  pivsoiniitioii  ; 
que,  comine  telles,  dies  sont  bien  saisies  et  devk'niicnt  sujetles  a 
confiscation ; 

"  Le  Comit^  de  Saiait  Public, — statiiant  en  consequence  de  son 
arrete  du  4  floreal  dernier,  arrete  : 

"'1'^  Est  contirnie  le  jngenient  du  ti'ibuiial  dc  c'liniiieiTM^  dt;  I5ay- 
onne,  du  oO  aout  179;),  rendu  en  faA'eurdu  capitaine  daiiois  du  navire 
IcH  Trois-Freres,  et  par  lequel  ce  navire  a  etc  declare  propriete  neu- 
tre,  et  relache  avec  payement  de  son  fret  et  une  indenniite  ; 

" '  -l'^  Sont  declarees  proprietes  genoises  et  neutres  les  marchan- 
dises  cluirgees  a  bord  du  navire  les  Trois-Freres  pour  compter  et 
risque  des  citoyens  Straiforello  et  autres ; 

" '  3^  Les  niarchandises  appartenant  aux  citoyens  Straff oi-ello  et 
autres  Genois  leur  seront  restituees,  dans  les  quantites  marquees  et 
qualites  designees  dans  les  connaisseuients ;  et,  en  cas  de  vente  de 
ces  marcliandises,  les  arniateurs  ducorsaire  le  Passe-Partout  en  reni- 
bourseront  la  valeur,  suivant  le  cours  dans  lelieu  de  leur  destination 
au  moment  de  la  prise,  avec  interet  de  la  valeur  des  objets  restitues, 
les  dits  interets  tenant  lieu  de  toute  indenniite  d'indue  retention  ; 

"  '4'^  Sont  declarees  proprietes  ennemieset  conunetelles  acquises 
par  confiscation  aux  armateurs  et  a  1' equipage  du  corsaire  le  Passe- 
Partout,  toutes  autres  parties  de  la  cargaison  du  navire  les  Trois- 
Freres  et  qui  out  ete  cbargees  pour  lecomptede  qui  il  appartiendra  ; 

"  '5^  Les  marchandises  de  cette  cargaison,  si  elles  existent  encore 
en  nature,  qui  pourraient  etre  jugees  utiles  au  service  de  la  Repub- 
lique,  seront  achetees  pour  son  compte,  etla  valeur  en  sera  payee  des 
la  remise  au  magasin  a  ceux  a  qui  elles  appartiennent,  aux  termes 
du  present  arrete.'  "  (Cette  cause  etait  usuelle  au  temps  du  Comite 
de  salut  public.  Voyez  Merlin,  Questions  de  droit  X.  Prises  mari- 
times,  i  TT.)  ^ 

'  Observations. — "  AujourcVliui,  que  le  principeque  le  pavilion  couvre  la  car- 
gaison est  admis  sans  conteste,  cette  decision  pent  paraitre  au  pi'emier  abord 
n'avoir  qu'un  interet  liistorique  ;  elle  a  cependant  aussi  un  interet  juridique.  En 
effet.  la  declaration  de  I'Empereur,  du  29  mars  1854,  annonce  que  les  marchan- 
dises neutres  chargees  sur  navires  ennemis  ne  seront  pas  confisquees.  L' arrete 
du  Comite  de  salut  public  juge  que  des  marchandises  chargees  i^ar  des  neutres 
avec  d'autres  marchandises  reconnues  neutres  et  destinees  a  un  port  ennenii.  doi- 
vent  etre  reputees  ennemies,  si  le  destinataire  n'est  pas  connu.  Cette  decision 
pourrait  s'appliquer  aujourd'hui  ;i  des  marchandises  chargees  sur  un  navire  en- 
nemi.  En  effet,  il  s'agissait  dans  Tespece  de  savoir  (pielle  etait  la  nationalite  des 
marchandises,  et  cette  question  etait  tout  a  fait  indepeudante  de  la  nationalite  du 
navire  veeteur." 


350  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [I'AKT    U. 


Section  35.— Transfer  in  Transitu. 


THE  "YROW  MARGARETIIA." 
High  Court  of  Admiralty,  1799. 

(1  C.  Robinson,  336.) 

This  was  the  case  of  a  cargo  of  brandies  shipped  by  Spanish  merchants  in  Spain 
in  May,  1794,  before  Spanish  hostilities,  and  transferred  to  Mr.  Berkeymyerat 
Hamburgh,  during  their  voyage  to  Holland.  Held,  to  be  a  bona  fide  transaction, 
and  the  rule  against  transfer  in.  transitu  was  not  appUed. 

Judgment, — Sir  W.  Scott  : — 

"  This  is  a  claim  of  :Mr.  Ph.  Berkeymj^er,  of  Hamburgh,  for  some 
parcels  of  wine  which  were  seized  on  board  three  Dutch  vessels  de- 
tained by  order  of  government  in  1795.  The  ships  have  been  since 
condemned;  the  cargoes  were  described  in  the  ship's  papers,  as  far 
as  the  property  was  expressed,  as  belonging  to  Spanish  merchants. 
It  is  material,  in  this  case,  to  consider  the  relative  situation  of  the 
countries  from  which,  and  to  which  these  cargoes  were  going. 
Spain  and  Holland  were  then  in  alliance  with  this  country  and  at 
war  with  France;  it  might,  therefore,  be  an  inducement  with  a 
Spanish  merchant  to  conceal  the  property  of  his  goods,  although  it 
does  ?wt  appear  to  have  existed  in  any  great  degree,  as  the  goods 
were  coming  under  an  English  convoy,  and  as  they  were  shipped  '  as 
Spanish  wines,'  and  destined,  avowedly,  to  Holland ;  there  was, 
therefore,  nothing  in  this  part  of  the  case  to  mislead  our  cruisers. 
:Mr.  Berkeymyer  is  allowed  to  be  an  inhabitant  of  Hamburgh, 
although  he  had  made  a  journey,  a  short  time  previous  to  the  ship- 
ment of  these  cargoes,  to  Spain  (where  he  had  resided  some  years 
before),  to  settle  his  affairs,  and  bring  off  the  property  which  he  had 
left  behind  him.  He  had  quitted  Spain,  however,  previous  to  the 
breaking  out  of  Spanish  hostilities,  and  had  resumed  his  original 
character  of  a  merchant  of  Hamburgh.  Tlie  account  which  he  gives 
of  his  transactions  in  Spain,  as  far  as  they  regard  this  case,  is,  that 
he  entered  into  a  contract  with  two  Spanish  houses  for  some  wines, 
wliich  were  at  the  time  actually  shipped,  and  in  itinere  towards  Hol- 
land. The  first  objection  that  has  been  taken  is,  that  such  a  transfer 
is  invalid,  and  cannot  be  set  up  in  a  Prize  Court,  where  the  property 


CHAP.  II.]  THE   "  VROW    MARGAUETHA."  o^l 

is  always  considered  to  remain  in  tlie  same  character  in  which  it  was 
shipped  till  tlie  delivery.  If  that  could  he  jnaintained  tliere  would 
he  an  end  of  the  question,  hecause  it  has  been  admitted  that  these 
wines  were  shipped  as  Spanish  property,  and  that  Spanish  property 
is  now  become  liable  to  condenniation.  But  T  ai)preheiid  it  is  a  posi- 
tion which  cannot  be  maintained  in  that  extent.  In  the  oi'dinary 
course  of  things  in  time  of  peace — for  it  is  not  denied  that  such  a 
contract  may  be  made,  and  effectually  made  (according'  to  the  usage 
of  merchants,)  such  a  transfer  in  transitu  might  certainly  be  made. 
It  has  even  been  contended  that  a  mere  delivering  of  the  bill  of 
lading  is  a  transfer  of  the  property.  But  it  might  be  more  correctly 
expressed,  perhaps,  if  said  that  it  transfers  only  the  right  of  delivery  ; 
but  that  a  transfer  of  the  bill  of  lading,  with  a  contract  of  sale  ac- 
companying it,  may  transfer  the  property  in  the  ordinary  course  of 
things,  so  as  effectually  to  bind  the  parties,  and  all  others,  cannot 
well  be  doubted.  When  war  intervenes,  another  rule  is  set  up  by 
Courts  of  Admiralty,  which  interferes  with  the  ordinary  practice. 
In  a  state  of  war,  existing  or  imminent,  it  is  held  that  the  property 
shall  be  deemed  to  continue  as  it  was  at  the  time  of  shipment  till 
the  actual  delivery ;  this  arises  out  of  the  state  of  war,  which  gives 
a  belligerent  a  right  to  stop  the  goods  of  his  enemy.  If  such  a  rule 
did  not  exist  all  goods  shipped  in  the  enemy's  country  would  be 
protected  by  transfers  which  it  would  be  impossible  to  detect.  It  is 
on  that  principle  held,  I  believe,  as  a  general  rule,  that  property  can- 
not be  converted  in  transitu  ;  and  in  that  sense  I  recognize  it  as  the 
rule  of  this  Court.  But  this  arises,  as  I  have  said,  out  of  a  state  of 
war,  which  creates  new  rights  in  other  parties,  and  cannot  be  applied 
to  transactions  originating,  like  this,  in  a  time  of  j)eace.  The  trans- 
fer, therefore,  must  be  considered  as  not  invalid  in  point  of  law,  at 
the  time  of  the  contract ;  and  being  made  before  the  war  it  must  be 
judged  according  to  the  ordinary  rules  of  commerce. 

"  It  has  been  farther  objected  to  the  validity  of  this  contract,  that 
a  part  of  the  wines  did  actually  reach  Hamburgh,  Avhere  they 
were  sold,  and  the  money  was  detained  by  the  consignees  in  pay- 
ment of  the  advances  which  they  had  made.  It  is  said  that  this 
annuls  the  contract — to  the  extent  of  that  part  it  may  do  so,  and  the 
deficiency  must  be  made  up  to  tlie  purchaser  by  other  means  ;  but  it 
appears  that  it  has  been  actually  supplied  by  bills  of  exchange,  and 
an  assignment  of  other  wines  sent  to  Petersburgh.  It  is  not  for  me 
to  set  aside  the  whole  contract  on  that  partial  ground,  or  to  construe 
the  defect  in  the  execution  of  the  contract  so  rigorously  as  to  extend 
it  to  those  wines  which  never  went  to  Holland,  and  which  never  be- 
came de  facto  subject  to  be  detained  by  the  consignees.     They  are 


352  EFFECTS    OF    WAR    AS    BETWEEN   ENEMIES.  [PAET  II. 

free  for  the  contract  to  act  upon ;  and  if  the  parties  are  desirous  of 
adherin<i:  to  their  contract  in  its  whole  extent,  it  does  not  become 
other  persons  to  obstruct  them. 

"It  comes  then  to  a  question  of  fact,  Avhetlier  it  was  a  hona  fide 
transfer  or  not?  I  think  the  time  is  a  strong  circumstance  to  iirove 
the  fairness  of  the  transaction.  Had  it  happened  three  months 
later  there  might  have  been  reason  to  alarm  the  prudence  of  Spanish 
merchants,  and  induce  them  to  resort  to  the  expedient  of  covering 
their  property.  But  at  the  time  of  the  contract  there  seems  to  have 
been  no  reason  for  apprehension,  and  therefore  there  is  nothing  to 
raise  any  suspicion  on  that  point. 

"  The  instruments  of  sale  have  been  produced,  and  no  observation 
has  been  made  upon  them.  The  correspondence  has  been  exhibited, 
and  there  is  certainly  some  confusion  in  the  dates.  Explanations 
have  been  given,  which  are  probable  enough ;  still  they  are  but  con- 
jectural. If  the  counsel  for  the  captors  require  it  I  will  order  the 
original  documents  in  proof  of  these  explanations  to  be  produced ; 
although  I  must  say,  at  the  same  time,  that  the  impression  upon  my 
mind  is,  that  it  is  a  fair  transaction. 

"  The  originals  decreed  to  be  produced. 

"  January  15th,  1800.  The  captors  being  satisfied  with  the  farther 
proof  produced,  Mr.  Berkeymyer's  claims  were  restored  without 
opposition." 


THE  "JAX  FREDERICK." 
High  Court  of  Admiralty,  1804. 

(5  C.  Robinson,  128.) 

A  contract  in  contemplation  of  war,  for  the  transfer  of  colonial  produce  in 
transitu,  held  illegal. 

Judgment, — Sir  W.  Scott  : — 

"  This  question  arises  on  parts  of  several  cargoes  put  on  board 
Dutch  ships  in  January  and  February,  1803,  and  brought  in  under 
the  general  embargo  on  Dutch  property,  previous  to  hostilities,  in 
the  month  of  May.  The  property  is  documented  for  the  account  and 
risk  of  certain  estates  in  Surinam  ;  and  certainly,  if  it  was  not  al- 
lowable under  any  considerations  to  aver  against  the  evidence  of  the 
ship's  documents,  it  must  be  subject  to  condemnation  as  Dutch 
property.  But  the  Court  has  opened  a  door  to  such  claims,  in  oppo- 
sition to  the  averment  of  the  ship's  papers ;  and  it  has  done  this,  on 


CHAP.il]  the    "JAN    FREDERICK."  353 

a  consideration  of  the  fair  course  of  mercantile  speculation  in  time  of 
peace.  It  has  even  allowed  a  change  of  property  in,  transitu,  by  the 
transfer  of  the  bills  of  lading-,  where  it  had  l)een  done  without  any 
view  of  accommodation  to  relieve  the  seller  from  the  pressure  or 
prospect  of  war.  In  the  present  instance,  there  is  no  proof  of  any 
transfer  of  the  bills  of  lading,  except  as  to  one  or  two  parcels  of 
goods  belonging  to  the  widow  Noble,  which  do,  indeed,  bear  an  en- 
dorsement, but  whether  they  were  so  endorsed  before  or  after  the 
Avar,  it  does  not  appear.  This  alone  would  be  sufficient  to  defeat  the 
claim;  since,  till  the  bill  of  lading  was  so  endorsed,  the  contract 
would,  I  apprehend,  be  a  thing  remaining  in  covenant  only  :  it  might 
subject  the  party  to  an  action  danud  dati^  but  it  would  not  amount 
to  a  transfer,  being  only  an  engagement  that  the  goods  should  be 
transferred  when  they  arrived.  That  a  transfer  may  take  place  in 
transitu,  has,  I  have  already  observed,  been  decided  in  two  or  three 
cases,  AA  here  there  had  been  no  actual  war,  nor  any  prospect  of  Avar, 
mixing  itself  Avitli  the  transaction  of  the  parties.  But  in  time  of 
Avar  this  is  prohibited  as  a  vicious  contract,  being  a  fraud  on  bellig- 
erent rights,  not  only  in  the  particular  transaction,  but  in  the  great 
facility  Avhich  it  Avould  necessarily  introduce,  of  evading  those  rights 
beyond  the  possibility  of  detection.  It  is  a  road  that,  in  time  of  Avar, 
must  be  shut  up  ;  for  although  honest  men  might  be  induced  to 
traA'el  it  with  very  innocent  intentions,  the  far  grt^aler  pi'o})ortion  of 
those  who  passed  Avould  use  it  only  for  sinister  purposes,  and  with 
views  of  fraud  on  the  rights  of  the  belligerent. 

"  This,  hoAvever,  is  not  a  contract  made  in  time  of  Avar;  and  there- 
fore an  important  question  is  raised,  Avhether  the  contemplation  of 
v:ar  \\ow\&  have  the  same  effect  in  vitiating  these  contracts  as  act- 
ual Avar?  It  cannot  be  said  that  all  engagements  in  the  proximity 
of  war,  into  which  the  speculation  of  war  might  enter,  as  for  in- 
stance, Avith  regard  to  the  price,  Avould  therefore  be  invalid.  The 
contemplation  of  A\'ar  is  undoubtedly  to  be  taken  in  a  more  i-estricted 
sense.  But  if  the  contemplation  of  Avar  leads  innnediately  to  the 
transfer,  and  becomes  the  foundation  of  a  contract,  that  Avonld  not 
otherAAise  be  entered  into  on  the  part  of  the  seller  ;  and  this  is  known 
to  be  so  done,  in  the  understanding  of  the  purchaser,  though  on  his 
part  there  may  be  other  concurrent  motives,  as  in  the  case  of  the 
Rendsborg  (4  C.  Rob.,  121),  such  a  conti'act  cannot  be  held  good,  on  the 
same  principle  that  applies  to  invalidate  a  transfer  in  transitu  in 
time  01  actual  AA^ar.  The  motive  may  indeed  be  difficult  to  be  proved 
— but  that  Avill  be  the  difficulty  of  particular  cases.  Supposing  the 
fact  to  be  established,  that  it  is  a  sale  under  an  admitted  necessity, 
arising  from  a  certain  expectation  of  Avar ;  that  it  i.s  a  sale  of  goods 
23 


354  EFFECTS    OF    \YAR   AS   BETWEEN    ENEMIES.         [PAIIT  U- 

not  ill  the  possession  of  tlie  seller,  and  in  a  state  where  they  could 
not,  during  war,  be  legally  transferred,  on  account  ot  the  fraud  on 
belligerent  rights.  I  cannot  but  think  that  the  same  fraud  is  commit- 
ted against  the  belligerent,  not,  indeed  as  an  actual  belligerent,  but  as 
one  who  was,  in  the  clear  expectation  of  both  the  contracting  par- 
ties, likely  to  become  a  belligerent  before  the  arrival  of  the  property, 
which  is  made  the  subject  of  their  agreement.  The  nature  of  both 
contracts  is  identically  the  same,  being  equally  to  protect  the  prop- 
erty from  capture  of  war — not  indeed  in  either  case  from  capture 
at  the  present  moment  when  the  contract  is  made,  but  from  the 
danger  of  capture,  when  it  was  likely  to  occur.  The  (Object  is  the 
same  in  both  instances,  to  afford  a  guarantee  against  the  same  crisis. 
In  other  words,  both  are  done  for  the  purpose  of  eluding  a  belliger- 
ent right,  either  present  or  expected.  Both  contracts  are  framed 
with  the  same  animc  jfraudandi,  and  are,  in  my  opinion,  justly 
subject  to  the  same  rule.    *     *     * 

"  I  am  of  opinion,  therefore,  that  if  the  papers  and  letters  which 
have  been  produced,  do  suflticiently  establish  the  purpose  attributed 
to  the  contract,  if  it  is  proved  to  have  been  built  immediately  and 
fundamentally  on  the  contemplation  of  war,  on  the  part  of  the  seller, 
and  that  it  would  not  otherwise  have  fallen  into  the  hands  of  the 
purchaser,  it  is  an  illegal  contract,  and  must  be  held  on  ever}'' 
ground,  on  which  similar  contracts  in  time  of  war  have  been  held  to 
be  invalid.     *     *     * 

"But  taking  it  to  be  a  bona  fide  contract,  yet  being  formed /« 
transitu,  for  the  purpose  of  witlidrawing  the  property  from  capttire, 
it  does  intimately  partake  of  the  nature  of  those  contracts,  which  have, 
in  the  repeated  decisions  of  this,  and  of  the  Supreme  Court,  been 
pronounced  null  and  invalid;  and  I  pronounce  this  property  subject 
to  condemnation." 


THE  SHIP  "  AXN  GREEX." 

U.  S.  CiPxuiT  Court  for  3Iassachusetts,  1812. 

( 1  Gallison,  274.) 

Property  not  permitted  to  change  character  in  transit ;  nor  shall  property  con- 
signed, to  become  the  jjroperty  of  the  enemy  on  arrival,  be  protected  by  the  neu- 
trality of  the  shipi)er. 

Extract  from  the  opinion  of  Story,  J. : — 

"  It  has  been  further  argued,  that  this  capture,  being  made  while 


OHAP.  II.]  THE   SHIP    '"  ANX   GUKEX."  355 

the  property  was  in  transitu^  and  war  intervening,  it  is  to  be  consid- 
ered as  enemy's  property,  beeause  it  would  liave  become  such  upon 
arrival  at  the  port  of  destination :  and  at  all  events  it  would  have  Ijeen 
liable  to  seizure  and  confiscation.  As  to  the  fact  that  the  property 
was  taken  in  transitu,  I  do  not  perceive  how  of  itself  it  can  affect 
the  rights  of  the  parties  either  way;  nor  do  I  perceive  how  this 
property  was  to  have  become  enemy's  property  on  its  arrival.  The 
case  proved  is,  that  it  was  American  property  consigned  for  sale 
only,  and  not  a  consignment  where  the  property  was,  at  the  time  of 
shil)ment  or  of  arrival,  to  belong  to  the  consignee.  The  cases  are,  as  I 
think,  settled  upon  just  principles,  that  decide  that  in  time  of  war, 
property  shall  not  be  permitted  to  change  character  in  its  transit; 
nor  shall  property  consigned,  to  become  the  property  of  the  enemy 
on  arrival,  be  protected  by  the  neutrality  of  the  shipper.  Such  con- 
tracts, however  valid  in  time  of  peace,  are  considered,  if  made  in  war 
or  in  contemplation  of  war,  as  infringements  of  belligerent  rights,  and 
calculated  to  introduce  the  grossest  frauds.  In  fact,  if  they  could 
prevail,  not  a  single  bale  of  enemy's  goods  would  ever  be  found  upon 
the  ocean."  (  Vroio  Margaretha,  1  C.  Rob.,  33G ;  Carl  Walter,  4  C. 
Rob.,  207;  Jan  Frederick,  5  C.  Rob.,  128;  The  Constantia,  6  C. 
Rob.,  321 ;  The  Anna  Catharina,  4  C.  Rob.,  107 ;  Packet  De  Bilhoa, 
2  C.  Rob.,  133.)i 

'  In  the  case  of  the  ship  Francis  and  Cargro,  1  Gallison,  445,  approved  by  the 
Supreme  Court,  8  Cranch,  354  (1813),  a  shipment  made  by  an  enemy  shipper  to 
his  correspondent  in  America,  to  belong  to  the  latter  at  his  election,  in  twenty- 
four  hours  after  the  arrival  thereof,  was  held  liable  to  condemnation  as  hostile 
property. 

In  war  property  cannot  change  its  character  in  transitu;  and  in  this  case,  an 
election  during  the  transit  would  not  merge  the  hostile  character  of  the  prop- 
erty. 

On  the  subject  of  the  sale  in  transitu  by  a  belligerent  to  a  neutral,  see  an  arti- 
cle by  T.  S.  M.  Browne,  in  the  Law  Magazine  and  Review,  1870,  vol.  29,  p.  233. 


o56  EFFECTS   OF    WAil   AS   BETWEEN    ENEMIES.  [PAKT  11. 


Section  36. — FREionT. 


THE  "VliOW  IIENlilCA." 

High  Coikt  of  Admiralty,  1803. 

(4  C.  Robinson.  SiS.) 

Wliere  a  nentral  vessel  carrying  enemy's  goods  is  captured,  the  neutral  master 
is,  as  a  general  rule,  entitled  to  his  freight,  which  is  a  lien  ou  the  cargo.  On  ac- 
count of  the  peculiar  circumstances  of  this  case,  the  freight  was  postponed  to  the 
captor's  laio  expcihscs. 

This  was  a  case  of  a  Danish  vessel  taken  on  a  voyage  from 
Valencia  to  London.  The  ship  had  been  restored  with  freight  to  be 
a  cliarge  on  the  cargo,  which  was  condemned,  bnt  the  proceeds  not 
being  snflficient  to  i')ay  the  freight  and  the  expenses  of  the  captor,  it 
was  prayed  on  the  part  of  the  neutral  ship,  that  the  priority  of  pa}'- 
ment  might  be  given  to  freiglit,  on  the  authority  of  the  lirerueit 
Fbujge,  4  C.  Kob.,  90. 

Judgment, — Sir  "W.  Scott  : — 

"  I  have  considered  the  cases  which  I  directed  to  be  looked 
up,  and  I  see  no  reason  to  alter  the  opinion  which  I  before 
expressed,  that  freight  is,  in  all  ordinary  cases,  a  lien  which 
is  to  take  place  of  all  others.  The  captor  takes  cum  onere  : 
It  is  the  allowed  privilege  of  neutral  trade  to  carry  the  property  of 
the  enemy,  subject  to  its  capture,  and  to  the  temporary  detention  of 
his  vessel ;  and  if  the  party  does  not  prevaricate,  or  conduct  him- 
self in  any  respect  witli  ill-faitli,  he  is  entitled  to  his  freight.  This 
is  tlie  rnle  which  I  am  disposed  to  apjily  in  all  cases  of  neutral  ships 
carrying  on  their  ordinary  commerce.  It  is  the  (jeneral  rule,  which 
may  nevertheless  be  liable  to  be  altered  by  circumstances.  Thei-e  is 
one  class  of  cases  to  which  I  think  it  onriht  not  to  be  applied — I 
mean  the  case  of  ships  carrying  on  a  trade  between  ports  of  allied 
enemies — a  trade  which  may  be  said  to  arise  in  a  great  measure 
out  of  the  circumstances  of  war,  though  not  altogether :  I  say  not 
altogether,  because  such  a  trade  exists  in  a  limited  degree  in  times 
of  peace. 

''  In  such  a  course  of  trade,  althougli  the  Court  has  not  altogether 
refused  freight  to  the  neutral  ship,  yet  it  may  not  think  it  unreason- 


CHAP.  II.]  THT-:    "  FOUTUNA."  357 

able  that  the  captor  should,  in  preference,  be  entitled  to  his  expenses, 
inasmuch  as  the  nature  of  such  a  trade  cannot  but  very  much  influ- 
ence the  judgment  which  he  must  unavoidably  form  of  his  duty  to 
bring  in  the  cargo  for  adjudication.  In  the  present  case,  the  voyage 
is  not  between  the  ports  of  allied  enemies,  but  between  the  ports  of 
two  belligerents,  from  Valencia  to  London ;  that  constitutes,  I 
think,  a  sort  of  middle  case,  with  respect  to  the  obligation  by  which 
the  captor  might  conceive  himself  bound  to  bring  the  cargo  to  adju- 
dication. There  might  be  a  presumption,  undoubtedly,  that  the 
property  belonged  to  the  enemy  exporter ;  but  there  is  a  foundation 
also  for  presuming  that  it  might  belong  to  the  consignee,  and  that  it 
would  not  have  been  sent  on  a  destination  to  this  country,  but  under 
the  protection  of  a  license. 

"  It  is,  therefore,  a  case  of  a  mixed  nature,  to  which  I  shall  apply 
a  sort  of  a  middle  judgment.  I  will  allow  the  captor  his  law 
expenses,  and  direct  the  other  expenses  to  be  postponed  to  the  pay- 
ment of  freight." 


THE  "FORTUNA." 

High  Court  of  Admiralty,  1802. 

(4  C.  Eobinson,  278.) 

Freight  is  due  to  the  captor,  in  virtue  of  the  ship,  which  liad  been  condemned, 
when  the  cargo  (neutral)  is  carried  by  them  to  the  jjlace  of  its  destination. 

This  was  a  case  on  petition  of  the  captors,  praying  to  be  allowed 
freight  for  a  cargo,  which  had  been  restored  as  neutral  property.  The 
demand  for  freight  was  founded  on  a  suggestion,  that  the  ship, 
which  had  been  condemned,  had  actually  performed  the  contract  of 
the  original  affreightment,  by  carrying  the  cargo  to  the  place  of  its 
destination. 

Judgment, — Sir  W.  Scott  : — 

"  This  is  the  case  of  a  ship  which  had-  carried  a  cargo  of  corn  to 
Lisbon,  the  original  port  of  destination.  In  such  a  case  I  appre- 
hend the  rule  to  be,  that  the  captor  is  entitled  to  freight,  and  on  the 
same  principle,  on  which  he  would  be  held  not  to  he  entitled,  where 
he  does  not  proceed,  and  perform  the  original  voyage.  The  specific 
contract  is  performed  in  the  one  case,  and  not  performed  in  the 
other.  It  is  the  rule  of  practice  laid  down  in  the  case  of  the  Vrey- 
heid.  Lords,  1784,  a  case  perfectly  within  my  recollection  as  a  case 
very  deliberately  considered  at  the  Cockpit.     It  is  conformable  to 


358  EFFECTS    OF    WAR   AS   BETWEEN    ENEMIES.         [PAItT  11. 

the  text  law,  and  the  opinion  of  eminent  jurists.  '  Quod  additur  de 
vecturae  pietiis  solvendis  (says  Bynkershoelv),  ejus  juris  rationem 
non  adsequor.  Satis  intelligo,  qui  navem  liostilem  occupant,  etiaiu 
occupasse  omne  jus  quod  navi,  sive  navarclio  debebatur,  ob  nierces 
translatas  in  portum  destinatum.  Proponitur  autem,  navem  in  ipso 
itinere  fuisse  captam.  Eccur  igitur  capienti  solvam  mercedes  ?  Si 
qui  cepit  navem,  eam  cum  mercibus  in  locum  destinatum  perducere 
paratus  sit,  ejus  juris  rationem  iiitelligerem,  ceteroquin  non  in- 
telligo.' 

''  In  the  case  of  the  Yreifheid^  all  the  considerations  that  could  be 
applied  to  this  question  were  fully  canvassed,  and  it  was  then  recog- 
nized as  the  true  rule,  that  the  captor  vJlo  has  performed  the  con- 
tract of  the  vessel  is,  as  a  matter  of  right,  and  de  cursii,  entitled  to 
freight ;  although,  if  he  has  done  anything  to  the  injury  of  the  prop- 
erty, or  has  been  guilty  of  any  misconduct,  he  may  remain  answer- 
able for  the  effect  of  such  misconduct,  or  injury,  in  the  way  of  a  set- 
off against  him. 

"  The  case  then  is  reduced  to  a  question,  whether  the  captor,  in 
this  instance,  /las  done  anything  to  forfeit  the  right,  which,  under 
the  general  rule,  he  had  acquired.    *     *    * 

"  Under  the  circumstances  of  this  case,  I  am  of  opinion,  that  the 
captor  has  not  forfeited  the  interest  which  he  had  acquired. 

"  Freight  decreed  to  the  captor." 


Section  37. — Recapture — Rescue. 


THE  "SAXTA  CRUZ." 

High  Court  of  Admiralty,  1798. 

( 1  C.  Robinson,  49. ) 

General  rules  of  recapture  and  salvage. 

The  law  of  England,  on  recapture  of  property  of  allies,  is  the  law  of  reci- 
procit}-. 

This  was  the  case  of  a  Portuguese  vesssel  taken  by  the  French, 
August  1,  1700,  and  retaken  by  English  cruisers,  on  the  2Sth,  after 
being  a  month  in  the  possession  of  the  enemy. 

Judgment, — Sir  W.  Scott  : — 

u*  *  *  In  the  arguments  of  the  counsel,  I  have  heard  much  of 
he  rules  which  the  law  of  nations  prescribes  on  recapture,  respect- 


CHAP.  II.]  THE    "  SAXTA   CRUZ."  359 

ing  the  time  when  property  vests  in  tlie  captor;  and  it  certainly  is 
a  question  of  much  curiosity  to  inquire  what  is  the  true  rule  on  this 
subject ;  when  I  say  the  true  rule,  I  mean  only  the  rule  to  which 
civilized  nations,  attending  to  just  principles,  ought  to  adhere;  for 
the  moment  you  admit,  as  admitted  it  must  be,  that  the  practice  of 
nations  is  various,  you  admit  there  is  no  rule  operating  with  the 
proper  force  and  authority  of  a  general  rule. 

"  It  may  be  fit  there  should  be  some  rule,  and  it  might  be  either 
the  rule  of  immediate  possession  or  the  rule  of  pernoctation  and 
twenty-four  hours' possession ;  or  it  might  be  the  rule  of  bringing 
infra  prcesidia ;  or  it  might  be  a  rule  requiring  an  actual  sentence 
of  condemnation ;  either  of  these  rules  might  be  sufficient  for 
general  practical  convenience,  although  in  theory  perhaps  one 
might  appear  more  just  than  another ;  but  the  fact  is,  there  is  no 
such  rule  of  practice ;  nations  concur  in  principle,  indeed,  so  far  as 
require  firm  and  secure  possession ;  but  their  rules  of  evidence  re- 
specting the  possession  are  so  discordant  and  lead  to  such  opposite 
conclusions  that  the  mere  unity  of  principle  forms  no  uniform  rule 
to  regulate  the  general  practice.  But  were  the  public  opinion  of 
European  States  more  distinctly  agreed  on  any  principle  as  fit  to 
form  the  rule  of  the  law  of  nations  on  this  sul)ject,  it  by  no  means 
follows  that  any  one  nation  would  lie  under  an  obligation  to  ob- 
serve it. 

"  That  obligation  could  arise  only  from  a  reciprocity  of  practice  in 
other  nations  ;  for  from  the  very  circumstance  of  the  prevalence  of 
a  different  rule  among  other  nations,  it  would  become  not  only  law- 
ful, but  necessary  to  that  one  nation  to  pursue  a  different  conduct : 
for  instance,  were  there  a  rule  prevailing  among  other  nations  that 
the  immediate  possession  and  the  very  act  of  capture  should  divest 
the  property  from  the  first  owner,  it  would  be  absurd  in  Great 
Britain  to  act  towards  them  on  a  more  extended  principle  ;  and  to 
lay  it  down  as  a  general  rule,  that  a  bringing  infra  2)'>'cesidia, 
though  probably  the  true  rule  should  in  all  cases  of  recapture  be 
deemed  necessary  to  divest  the  original  proprietor  of  his  rights ;  for 
the  effect  of  adhering  to  such  a  rule  would  be  gross  injustice  to 
British  subjects.     *    *    * 

"If  I  am  asked,  under  the  knov/n  diversity  of  practice  on  this- 
subject,  what  is  the  proper  rule  for  a  State  to  apply  to  the  recapt- 
ured property  of  its  allies,  I  should  answer  that  the  liberal  and  ra- 
tional proceeding  would  be,  to  apply  in  the  first  instance  the  rule  of 
that  country  to  which  the  recaptured  property  belongs.     *     *     * 

"If  there  should  exist  a  country  in  which  no  rule  prevails,  the 
recapturing  country  must  then  of  necessity  apply  its  own  rule  and 


360  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [PART  II. 

rest  on  the  presumption  that  that  rule  will  be  adopted  and  adnihiis- 
tered  in  the  future  practice  of  its  allies.     *     *    * 

"I  understand  [the  law  of  Eng-land]  to  be  clearly  this  :  That  the 
maritime  law  of  England,  having-  adopted  a  most  liberal  rule  of  res- 
titution on  salvage,  uith  respect  to  the  recaptured  jn'operty  of  its 
own  subjects,  gives  the  benetit  of  that  rule  to  its  allies,  till  it  ap- 
pears that  they  act  towards  British  property  on  a  less  liberal  prin- 
ciple. In  such  a  case  it  adopts  their  rule  and  treats  them  accord- 
ing- to  their  OAvn  measure  of  justice,    *     *    *  " 

[As  Portugal  had  adopted  the  twenty-four-hour  rule,  that 
principle  was  applied  to  those  ships  recaptured  duriiig  the  time  that 
rule  prevailed  in  Portugal,  and  the  rate  of  salvage  decreed  was  the 
Portuguese  rate,  one-eighth  to  ships  of  war  and  one-fifth  to  priva- 
teers.   The  English  rule  allowed  one-sixth  to  privateers.] 


THE  "CAPtLOTTA." 

PIiGii  Court  of  Admiralty,  1803. 

(5  C.  Eobinson,  54.) 

Salvage  on  neutral  property,  retaken  out  of  the  hands  of  the  enemy,  not 
given — unless  it  can  be  shown  by  references  to  the  ordinances  or  to  the  prac- 
tice of  the  prize  coiu'ts  of  the  enemy,  that  the  first  seizure  was  made  vmder 
such  circumstances  as  would  have  exposed  the  goods  to  condemnation  in 
the  hands  of  the  enemy. 

This  was  a  question  of  salvage,  on  the  recapture  of  a  Spanish 
ship  and  cargo  from  a  French  cruiser. 

Judgment, — Sir  W.  Scott  : — 

"  The  (question  now  to  be  decided  is,  whether  salvage  is  due  on 
the  neutral  property  in  this  ship  which  has  been  recaptured  out  of 
the  possession  of  the  enemy.  It  certainly  has  not  been  the  practice 
of  this  court  to  decree  salvage  under  such  circumstances  generally  ; 
but,  in  consequence  of  the  violent  conduct  of  France  during  the  last 
war,  it  was  thought  not  nni-easonable  on  the  part  of  neutral  nier- 
£;hants  themselves,  that  salvage  should  be  allowed.     *     *     * 

"  I  am,  therefoi-e,  not  disposed  to  hold  generally  tliat  neutral 
property  recaptured  from  French  cruisers  shall  be  subject  to  sal- 
vage. I'he  rule,  so  far  as  it  can  be  considered  a  general  rule,  is 
rather  to  be  laid  down  the  other  way.  At  the  same  time,  if  any 
edict  can  be  appealed  to  or  any  fact  established,  by  which  it  can  be 
shewn  that  the  property  would  have  been  exposed  to  condemnation 


CHAP.  II.]  THE    '•  EMILY    ST.    PlEKllE."  3(31 

in  the  courts  of  France,  T  shall  hold  that  to  be  sufficient  ground  to 
induce  me  to  pronounce  for  salvage  in  that  particular  case.  With 
regard  to  the  precedent  of  the  Jouge  Lanihert  (5  C.  Kob.,  54,  note),  I 
think  I  am  warranted  to  consider  the  authority  of  that  case  as  in  a 
great  measure  done  away  by  the  subsequent  decision  of  the  Lords 
in  the  late  war,  in  wdiicli  they  have  repeatedly  pronounced  for  sal- 
vage on  the  recapture  of  neutral  property.  In  departing  from  the 
old  rule  they  have  in  some  degree  disclaimed  the  principle ;  and,  I 
think,  with  great  propriety,  as  far  as  it  could  be  considered  as  an 
universal  principle,  governing  the  practice  of  our  prize  courts  in  all 
possible  cases,  without  any  possible  exception.  In  the  present  in- 
stance there  does  not  appear  to  me  to  be  any  grounds  on  which  it 
can  be  supposed  that  this  property  would  have  been  condemned, 
merely  because  it  came  out  of  the  hands  of  a  British  privateer,  or 
because  the  original  voyage  had  been  the  colony  of  Spahi  to 
London.  No  edict  has  been  produced  from  the  French  code  to  shew 
that  this  property  would  have  been  subject  to  any  such  penalty  on 
either  of  those  accounts,  in  the  prize  courts  of  France.  Tlie  ex- 
penses of  the  recaptors  must  be  fully  paid ;  but  I  shall  not  pro- 
nounce salvage  to  be  due."  ^ 


THE  "EMILY  ST.  PIERRE." 

{Lawrence's  Mlieaton,  667,  1021.) 

It  is  not  the  duty  of  a  neutral  government  to  restore  a  private  vessel  of  one  of 
its  citizens  which  has  been  rescued  by  her  crew  from  a  belligerent  captor  before 
condemnation. 

This  was  a  British  vessel,  captured  by  the  United  States  block- 
ading squadron,  in  the  act  of  breaking  the  blockade  of  Charleston, 
S.  C,  and  ordered  to  Philadelphia  f(^r  adjudication  in  charge  of  a 
jnize  crew.  The  original  crew,  by  fraud  and  force,  I'egained  posses- 
sion, and  took  the  vessel  to  Liverpool  and  restored  her  to  the  posses- 
sion of  her  owners.  Mr.  Adams  applied  to  Earl  Russell  for  a  resto- 
ration of  the  vessel,  on  the  ground  that  the  rescue  was  a  violation  of 
the  law  of  nations,  which  furnished  sufficient  cause  for  condemna- 
tion, and  a  breach  of  the  duty  of  a  neutral,  who  is  bound  to  sub- 
mit CO  the  adjudication  of  the  prize  court  of  tlie  captor.  Earl  Rus- 
sell refused  the  demand  on  two  grounds,— ^/?r.s#,  that,  as  the  rescue 

'  For  an  account  of  the  laws  of  different  countries  on  the  subject  of  recapture 
and  salvage,  see  Dana's  Wheaton,  pp.  406— i72. 


302  EFFECTS    OF    WAR   AS    BETWEEN    ENEMIES.         [PART  II. 

was  not  a  violation  of  any  municipal  law  of  England,  and  as  the  ves- 
sel was  not  in  the  custody  of  the  British  Government,  that  govern- 
ment had  no  legal  right  to  take  her  from  the  hands  of  her  owners, 
or  to  prosecute  or  proceed  against  the  vessel  or  the  owners  for  any 
violation  of  law ;  and,  second,  that,  in  addition  to  the  technical  ob- 
jection, the  offense  was  solely  one  against  the  laws  of  war  made  for 
the  benefit  of  captors,  which  the  captors  could  assert  and  vindicate 
only  in  their  own  tribunals.  Admitting  that  rescue  was  ground  for 
condemnation,  he  contended  that  the  decree  could  only  be  made  by 
the  belligerent  prize  court.  No  other  court,  either  of  the  belligerent 
or  of  a  neutral  country,  had  jurisdiction  to  condemn  or  restore  prop- 
erty taken  in  war.  If  the  private  neutral  rescues  his  vessel  by  force 
he  takes  all  risks  of  the  captor's  rights  of  force  recognized  by  nations, 
but  nothing  more.  The  courts  and  government  of  the  neutral 
country  cannot  decide  that  the  title  to  the  vessel  has  passed  to  the 
captor  before  condemnation  by  the  prize  courts  of  the  captor's 
country.  All  they  can  do  is  to  restore  to  the  captor  the  temporary 
possessory  right,  which  he  has  between  capture  and  condemnation. 
Such  possessory  right  he  held  to  be  one  of  force,  which  the  captor's 
government  could  guard  and  assert  by  condemnation  or  other  pen- 
alty on  the  property,  if  in  its  possession,  through  its  prize  court ; 
but,  even  by  the  courts  of  the  captor,  the  neutral  rescuer  could  not 
be  personally  punished,  as  for  a  crime.  He  contended  that  it  was 
nut  incmnbent  on  neutral  governments  to  make  laws  to  enforce  such 
belligerent  possessory  rights  against  their  own  citizens,  any  more 
than  it  is  in  case  of  crimes  committed  by  their  own  citizens  abroad, 
whom  they  do  not  even  deliver  u[)  to  the  offended  government  for 
trial,  except  by  treaty  stipulation  ;  or  in  case  of  violations  of  the 
revenue  or  embargo  laws  of  other  counti-ies,  which  they  never  even 
indirectly  take  active  cognizance  of;  or  in  case  of  successful  breach 
of  blockade. 

In  the  course  of  the  correspondence  -Mr.  Adams  cited  a  parallel 
case,  in  which  the  position  of  the  two  governments  was  reversed,  as 
early  as  1799,  that  of  the  brig  J^.cperience.  She  was  an  American 
vessel,  captured  (with  two  other  vessels)  by  a  British  cruiser,  rescued 
by  her  crew,  and  brought  to  Philadelphia.  I>y  dii-ection  of  Loi-d 
Grenville,  of  Oct.  21,  1799,  Mr.  Liston  demanded  her  restoration  by 
the  American  government,  by  letter  of  May  2,  isoo. 

The  Secretary  of  State,  ^Nlr.  Pickering,  by  letter  to  Mr.  Liston,  of 
May  .3,  IsoO,  declined  to  interfere,  and  upo)V  the  ground  that  it  was 
an  inchoate  and  belligerent  right  of  captors,  which  the  neutral  gov- 
ernment cannot  V^e  expected  to  enforce  against  its  own  subjects  ;  but 
referred  the  British  Minister  to  the  Admiralty  Courts  of  the  United 


CHAP.  II.]  THE    "  EMILY    ST.  riERIlE."  3G3 

States,  giving  no  opinion  on  the  question  beyond  declining  executive 
intervention. 

The  papers  on  the  interesting  question  of  the  l>rig  Experience 
were  searched  for  and  exclianged  between  tlie  two  governments  by 
both  Earl  Russell  and  Mr.  Adams;  and  Earl  Uussell  stated  that 
there  was  no  evidence  in  the  Foreign  Office  that  the  opinion  of  the 
law-officer  of  the  crown  had  been  taken  in  that  case,  or  that  any 
further  proceedings  were  had  after  tlie  reply  of  IMr.  Pickering.  Mr. 
Adams,  on  his  part,  did  not  press  further  the  case  of  the  Emily  St. 
Pierre,  nor  attempt  proceedings  in  the  Admiralty  Courts  of  Great 
Britain. 

It  may,  therefore,  be  considered  as  settled  by  these  two  cases,  that 
a  neutral  government  is  not  required,  by  executive  action,  to  restore 
a  private  vessel  of  one  of  its  citizens  which  has  been  rescued  by  her 
crew  from  her  captors  before  condenniation,  on  demand  of  the  gov- 
ernment of  the  captors.  The  possessory,  belligerent  right  of  the 
captors,  is  not  to  be  enforced  by  neutral  powers  by  any  positive 
action  in  the  way  of  penalty  or  seizure  for  restitution.  Whether 
the  right  can  be  vindicated  by  a  possessory  suit  by  the  captors  in 
the  Admiralty  Courts  of  the  neutral,  has  not  been  judicially  deter- 
mined ;  but  the  course  of  the  political  departments  of  both  govern- 
ments, and  the  reasoning  on  which  they  proceeded,  seem  to  settle 
the  judicial,  as  well  as  the  political  question.    (Dana's  Wheaton,  475.)  ^ 

^  In  the  case  of  the  Lone,  3  Op.  Atty.-Gen.,  377,  this  vessel  had  entered  the 
port  of  Matamoras  while  it  was  blockaded  by  a  French  squadron  (1838),  and 
sailed  thence  for  New  Orleans.  On  the  voyage  she  was  captured  by  a  French 
cruiser:  but  some  days  later  she  was  rescued  by  her  captain,  wlio  brought  her  into 
New  Orleans.  A  demand  was  made  on  the  President  by  the  French  Govern- 
ment for  her  return  to  the  captors.  Attorney-General  Grundy  advised  that  the 
President  had  no  power  to  grant  the  demand,  the  case  involving  questions  to  be 
settled  by  the  courts,  and  not  by  th3  executive,  and  that  the  claimants  must  go 
into  the  courts.  He  also  advised  tliat  if  a  vessel,  after  escaping  from  her  cap- 
tors, terminated  her  voyage  in  safety,  her  liability  to  condemnation  for  the 
escape  entirely  ceases.    (3  Wharton's  Digest,  179.) 


o04  EFFECTS   OF    WAK   AS   BETWEEN    EXE.MIES.  [I'AKI  II. 


Section  38. — Hostile  Occupation — Conquest. 


UXITED  STATES  v.  lilCE. 
Supreme  Court  of  the  United  States,  1819. 

(4  Wheaton,  246.) 

Held,  Tliat,  while  Castine,  in  Maine,  was  in  the  military  possession  of  the 
British  forces,  it  was  not  a  port  of  the  United  States,  within  the  meaning  of  tiie 
revenue  laws,  so  that,  after  the  evacuation  of  the  place,  the  United  States  could 
coUect  duties  on  goods  imported  into  it  during  the  occupation. 

Story,  J.,  delivered  the  opinion  of  the  court : — 

"The  single  question  arising  on  the  pleadings  in  this  case  is, 
whether  goods  imported  into  Castine,  during  its  occupation  liy  the 
enemy,  are  liable  to  the  duties  imposed  by  the  revenue  laws  upon 
goods  imported  into  the  United  States.  It  appears,  by  the  pleadings, 
that  on  the  first  day  of  September,  1814,  Castine  was  captured  by 
the  enemy,  and  remained  in  his  exclusiv'e  possession,  under  the  com- 
mand and  control  of  his  military  and  naval  forces,  until  after  the  rati- 
fication of  the  treaty  of  peace,  in  February,  1815.  During  this  period, 
the  British  government  exercised  all  civil  and  military  authority 
over  the  place ;  and  established  a  custom-house,  and  admitted  goods 
to  be  imported,  according  to  regulations  prescribed  by  itself,  and, 
among  others,  admitted  the  goods  upon  which  duties  are  now  de- 
manded. These  goods  remained  at  Castine  until  after  it  was  evacu- 
ated by  the  enemy,  and  upon  the  reestablishinent  of  the  American 
government,  the  collector  of  the  customs,  claiming  a  right  to  Amer- 
ican duties  on  the  goods,  took  the  bond  in  (picstion  from  the  defend- 
ant, for  the  security  of  them. 

"  Under  these  circumstances,  we  are  of  o[)inion,  that  llie  claim 
for  duties  ca,nnot  be  sustained.  By  the  conquest  and  militai'v  occu- 
pation of  Castine,  the  enemy  acquired  that  firm  possession  which 
enabled  him  to  exercise  the  fullest  rights  of  sovereignty  over  tliat 
place.  The  sovereignt}^  of  the  United  States  over  the  territory  was, 
of  course,  suspended,  and  tlie  laws  of  the  United  States  could  no 
longer  be  rightfully  enfor(;ed  there,  or  be  obligatf)ry  upon  the  inhab- 
itants wlio  remained  iuid  submitted  to  the  conciueiors.  l]y  the  sur- 
render the  inluibitants  passed  under  a  temporary  allegiance  to  the 


CHAP.  II.]  FLEMING    V.  PAGE.  365 

British  government,  and  were  bound  l)y  such  laws,  and  suclioidy,  as 
it  chose  to  recognize  and  impose.  From  the  nature  of  the  case,  no 
other  laws  could  be  obligatory  upon  them ;  for  where  there  is  no 
protection,  or  allegiance,  or  sovereignty,  there  can  be  no  claim  to  obedi- 
ence. Castine  was,  therefore,  during  this  period,  so  far  as  respected 
our  revenue  laws,  to  be  deeme:!  a  foreign  port ;  and  goods  imported 
into  it  by  the  inhabitants,  were  subject  to  such  duties  only  as  the 
British  government  chose  to  require.  Such  goods  were,  in  no  cor- 
rect sense,  imported  into  the  United  States.  The  subsequent  evacu- 
ation by  the  enemy,  and  resumption  of  authority  by  the  United 
States,  did  not,  and  could  not,  change  the  character  of  the  previous 
transactions. 

"  The  doctrines  respecting  the  jus  2^ostli')ninU  are  wholly  inapplica- 
ble to  the  case.  The  goods  were  liable  to  American  duties,  when 
imported,  or  not  at  all.  That  they  were  not  so  liable  at  the  time  of 
importation,  is  clear  from  what  has  been  already  stated  ;  and  when, 
upon  the  return  of  peace,  the  jurisdiction  of  the  United  States  was 
reassumed,  they  were  in  the  same  predicament  as  they  would  have 
been  if  Castine  had  been  a  foreign  territory  ceded  by  treaty  to  the 
United  States,  and  the  goods  had  been  previously  imported  there. 
In  the  latter  case,  there  would  be  no  pretence  to  say  that  American 
duties  could  be  demanded  ;  and,  upon  principles  of  public  or  nninic- 
ipal  law,  the  cases  are  not  distinguishable. 

"  The  authorities  cited  at  the  bar,  would,  if  there  were  any  doubt, 
be  decisive  of  the  question.  But  we  think  it  too  clear  to  require  any 
aid  from  authority."  ^ 


FLEMING   V.  PAGE. 

SupRE3iE  Court  of  the  Uin^ited  States,  1850. 

( 9  Hoicard,  003.) 

Held,  that  goods  imported  into  the  United  States  from  Tampico,  IMexico. 
while  in  tlie  military  occupation  of  the  United  States  forces,  are  to  be  consid- 
ered as  importations  from  a  foi-eign  country. 

This  action  is  brought  by  the  plaintiffs,  merchants,  residing  in  the 
city  of  Philadelphia,  against  the  defendant,  the  late  collector  of  the 
poi't  of  Philadelphia,  to   recover  the  sum  of  one  thousand  five  hun- 

'  In  the  United  States  V.  Hay  ward,  2  Gallison,  48.")  (1815),  Mr.  Justice  Story 
held  tliat  Castine  was  to  be  considered  a  '■  foreign  port,"  with  reference  to  the 
non-importation  acts. 


3GG  EFFECTS    OF    WAR   AS   BETWEEN   ENEMIES.         [PAET  11. 

dred  and  twenty-nine  dollars,  duties  paid  on  the  14tli  of  June,  1S47, 
under  protest,  on  goods  belonging  to  the  plaintiffs,  brought  from 
Tainpico  while  that  place  was  in  the  military  occupation  of  the 
forces  of  the  United  States. 

On  the  15th  of  November,  184G,  Commodore  Conner  took  military 
possession  of  Tampico,  a  seaport  of  tlie  State  of  Tamaulipas,  and 
from  that  time  until  the  treaty  of  peace  it  was  garrisoned  by  Amer- 
ican forces,  and  remained  in  tlieir  military  occupati(m. 

Justice  was  administered  there  by  courts  appointed  under  the 
militai"y  authority,  and  a  custom-house  was  established  there,  and  a 
collector  appointed,  under  the  military  and  naval  autliority. 

Upon  a  certificate  of  division  in  opinion  in  the  Circuit  Court  the 
case  came  up  to  this  court. 

Judgment, — Taxey,  C.  J. : — 

"  The  question  certified  by  the  Circuit  Court  turns  upon  the  con- 
struction of  the  act  of  Congress  of  July  30,  1846. 

"The  duties  levied  upon  the  cargo  of  the  schooner  (Jatharine  were 
duties  imposed  by  this  law  upon  goods  imported  from  a  foreign 
country.  And  if  at  the  time  of  this  shipment  Tampico  was  not  a 
foreign  port,  w'ithin  the  uieaning  of  the  act  of  Congress,  then  tlie 
duties  were  illegally  charged,  and,  having  been  paid  under  protest, 
the  plaintiffs  would  be  entitled  to  recover  in  this  action  tlie  amount 
exacted  by  the  collector. 

"  Tlie  port  of  Tampico,  at  wliich  the  goods  were  shipped,  and  tlie 
IMexican  State  of  Tamaulipas,  in  which  it  is  situated,  were  undoubt- 
edly at  the  time  of  the  shipment  subject  to  the  sovereignty  and  do- 
minion of  the  United  States.  The  Mexican  authorities  had  been 
driven  out,  or  had  submitted  to  our  army  and  navy ;  and  the  country 
was  in  the  exclusive  and  firm  possession  of  the  United  States,  and 
governed  by  its  military  authorities  acting  under  the  orders  of  the 
President.  But  it  does  not  follow  that  it  was  a  part  of  the  United 
States,  or  that  it  ceased  to  be  a  foreign  country,  in  the  sense  in 
which  these  words  are  used  in  the  acts  of  Congress. 

"  The  country  in  question  had  been  conquered  in  war.  But  the 
genius  and  character  of  our  institutions  are  peaceful,  and  the  power 
to  declare  war  was  not  conferred  U[)on  Congress  for  the  purposes  f)f 
aggression  or  aggrandizement,  but  to  enable  the  general  government 
to  vindicate  by  arms,  if  it  should  become  necessary,  its  own  rights 
and  the  rights  of  its  citizens. 

"A  war,  therefore,  declared  by  Congress,  can  never  be  presumed 
to  be  waged  for  the  purpose  of  conquest  or  the  acquisition  of  terri- 
tory;  nor  does  the  law  declaring  the  war  imply  an  authority  to  the 
President  to  enlarge  the  limits  of  the  United  States  by  subjugathig 


CHAP.  II.]  FLEMING  V.   PAGE.  367 

the  enemy's  country.  The  United  States,  it  is  true,  may  extend  its 
boundaries  by  conquest  or  treaty,  and  may  demand  the  cession  of 
territory  as  the  condition  of  peace,  in  order  to  indenniify  its  citizens 
for  tlie  injuries  tliey  liavo  suffered,  or  to  reimburse  the  government 
for  the  expenses  of  tlie  war.  But  this  can  be  done  only  by  the 
treaty-making  power  or  the  legislative  authority,  and  is  not  a  part 
of  the  power  conferred  upon  the  President  by  the  declaration  of  war. 
His  duty  and  his  power  are  purely  military.  As  commander-in-cliief, 
he  is  authorized  to  direct  the  movements  of  the  naval  and  military 
forces  placed  by  law  at  his  command,  and  to  em[)l()y  them  in  the 
manner  he  may  deem  most  effectual  to  harass  and  conquer  and  sub- 
due the  enemy.  He  may  invade  the  hostile  country,  and  subject 
it  to  the  sovereignty  and  authority  of  the  United  States.  But  his 
conquests  do  not  enlarge  the  boundaries  of  this  Union,  nor  extend 
the  operation  of  our  institutions  and  laws  beyond  the  limits  before 
assigned  to  them  by  the  legislative  power. 

"  It  is  true,  that,  when  Tampico  had  been  captured,  and  the  State 
of  Tamaulipas  subjugated,  other  nations  were  bound  to  regard  the 
country,  while  our  possession  continued,  as  the  territory  of  the 
United  States,  and  to  respect  it  as  such.  For,  by  the  laws  and 
usages  of  nations,  conquest  is  a  valid  title,  while  the  victor  main- 
tains the  exclusive  possession  of  the  conquered  country.  The  citi- 
zens of  no  other  nation,  therefore,  had  a  right  to  enter  it  without  the 
permission  of  the  American  authorities,  nor  to  hold  intercourse  with 
its  inhabitants,  nor  to  trade  with  them.  As  regarded  all  other 
nations,  it  was  a  part  of  the  United  States,  and  belonged  to  them  as 
exclusively  as  the  territory  included  in  our  established  boundaries. 

"  But  yet  it  was  not  a  part  of  this  Union.  For  every  nation  which 
acquires  territory  by  treaty  or  conquest  holds  it  according  to  its 
own  institutions  and  laws.  And  the  relation  in  which  the  port  of 
Tampico  stood  to  the  United  States,  while  it  was  occupied  by  their 
arms,  did  not  depend  upon  the  laws  of  nations,  but  upon  our  own 
Constitution  and  acts  of  Congress.  The  power  of  the  President, 
under  which  Tampico  and  the  State  of  Tamaulipas  were  conquered 
and  held  in  subjection,  was  simply  that  of  a  military  commander 
prosecuting  a  war,  waged  against  a  public  enemy,  by  the  authority 
of  his  government.  And  the  country  from  which  these  goods  were 
imported  was  invaded  and  subdued,  and  occupied  as  the  territory  of 
a  foreign  hostile  nation,  as  a  portion  of  Mexico,  and  was  held  in  pos- 
session in  order  to  distress  and  harass  the  enemy.  AVhiie  it  Avas 
occupied  by  our  troops  they  were  in  an  enemy's  country,  and  not 
in  their  own ;  the  inhabitants  were  still  foreigners  and  enemies,  and 
owed  to  the  United  States  nothing  more  than  the  submission  and 


368  EFFECTS    OF    WAR    AS    IJETWEEN    ENEMIES.       [PAUT  U. 

obedience,  sometimes  called  temporary  allegiance,  which  is  due  from 
a  conquered  enemy,  when  he  surrenders  to  a  force  which  he  is  unable 
to  resist.  But  the  boundaries  of  the  United  States,  as  they  existed 
when  war  was  declared  against  ^Mexico,  were  not  extended  by  the 
conquest ;  nor  could  they  be  regulated  by  the  varying  incidents  of 
war,  and  be  enlarged  or  diminished  as  the  armies  on  either  side 
advanced  or  retreated.  They  remained  unchanged.  And  everyplace 
which  was  out  of  the  limits  of  the  United  States,  as  previously 
established  by  the  political  authorities  of  the  government,  was  still 
foreign  ;  nor  did  our  laws  extend  over  it.  Tampieo  was,  therefore, 
a  foreign  port  when  this  shipment  was  made. 

"  Again,  there  was  no  act  of  Congress  establishing  a  custom-house 
at  Tampico,  nor  authorizing  the  appointment  of  a  collector ;  and, 
consequently,  there  was  no  officer  of  the  United  States  authorized 
by  law  to  grant  the  clearance  and  authenticate  the  coasting  manifest 
of  the  cargo,  in  the  manner  directed  by  law,  where  the  voyage  is 
from  one  port  of  the  United  States  to  another.  The  person  who 
acted  in  the  character  of  collector  in  this  instance,  acted  as  such 
under  the  authority  of  the  military  commander,  and  in  obedience  to 
his  orders ;  and  the  duties  he  exacted,  and  the  regulations  he 
adopted,  were  not  those  prescribed  by  law,  but  by  the  President  in 
his  character  of  commander-in-chief.  The  custom-house  was  estab- 
lished in  an  enemy's  country,  as  one  of  the  weapons  of  war.  It  was 
established,  not  for  the  purpose  of  giving  to  the  people  of  Tamauli- 
pas  the  benefits  of  commerce  with  the  United  States,  or  with  other 
countries,  but  as  a  measure  of  hostility,  and  as  a  part  of  the  military 
oi^erations  in  ^Mexico;  it  was  a  mode  of  exacting  contributions  from 
the  enemy  to  support  our  army,  and  intended  also  to  cripple  the 
resources  of  Mexico,  and  make  it  feel  the  evils  and  burdens  of  the 
war.  The  duties  required  to  be  paid  were  regulated  with  this  view, 
and  were  nothing  more  than  contributions  levied  upon  the  enemy, 
which  the  usages  of  war  justify  when  an  army  is  operating  in  the 
enemy's  country.  The  permit  and  coasting  manifest  granted  by  an 
officer  thus  appointed,  and  thus  controlled  by  military  authoi'ity, 
could  not  be  recognized  in  any  port  of  the  United  States,  as  the 
documents  required  by  the  act  of  Congress  when  the  vessel  is  en- 
gaged in  the  coasting  trade,  nor  could  they  exempt  the  cargo  from 
the  payment  of  duties. 

"This  construction  of  the  revenue  laws  has  been  uniformly  given 
by  the  administrative  department  of  the  government  in  every  case 
that  has  come  before  it.  And  it  has,  indeed,  been  given  in  cases 
where  there  appears  to  have  been  stronger  ground  for  regarding  the 
place  of  shipment  as  a  domestic  port.    For,  after  Florida  had  been 


CHAP.   11.]  FLEMING    V.  PAGE.  869 

ceded  to  the  United  States,  and  the  forces  of  the  Ignited  States 
had  taken  possession  of  PensacoLi,  it  was  decided  by  the  Treasury 
Department,  that  goods  imported  from  Pensacohi  before  an  act  of 
Congress  was  passed  erecting  it  into  a  collection  district,  and  author- 
izing the  appointment  of  a  collector,  were  liable  to  duty.  That  is, 
that  although  Florida  had,  by  cession,  actually  become  a  part  of  the 
United  States,  and  was  in  our  possession,  yet,  under  our  revenue 
laws,  its  ports  must  be  regarded  as  foreign  until  they  were  estab- 
lished as  domestic,  by  act  of  Congress;  and  it  ai)pears  that  this  de- 
cision was  sanctioned  at  the  time  by  the  Attorney-General  of  the 
United  States,  the  law  oflflcer  of  the  government.  And,  although 
not  so  directly  applicable  to  the  case  before  us,  yet  the  decisions  of 
the  Treasury  Department  in  relation  to  Amelia  Island,  and  certain 
ports  in  Louisiana,  after  that  province  had  been  ceded  to  the  United 
States,  were  both  made  upon  the  same  grounds.  ^Vnd,  in  the  latter 
case,  after  a  custom-house  had  been  established  by  law  at  Xew 
Orleans,  the  collector  at  that  place  was  instructed  to  regard  as  fo!"- 
eign  ports  Baton  Rouge  and  other  settlements  still  in  the  posses;uon 
of  Spain,  whether  on  the  Mississippi,  Iberville,  or  the  sea-coast. 
The  Department  in  no  instance  that  we  are  aware  of,  since  the 
establishment  of  the  government,  has  ever  recognized  a  place  in  a 
newly-acquired  country  as  a  domestic  port,  from  which  the  coasting 
trade  might  be  carried  on,  unless  it  had  been  previously  made  so  by 
act  of  Congress. 

"The  principle  thus  adopted  and  acted  upon  by  the  executive 
department  of  the  government  has  been  sanctioned  by  the  decisions 
in  this  court  and  the  circuit  courts  whenever  the  question  came 
before  them.  We  do  not  propose  to  conunent  upon  the  different 
cases  cited  in  the  argument.  It  is  sufficient  to  say,  that  there  is  no 
discrepancy  between  them.  And  all  of  them,  so  far  as  they  apply, 
maintain,  that  under  our  revenue  laws  every  port  is  regarded  as  a 
foreign  one,  unless  the  custom-house  from  which  the  vessel  clears  is 
within  a  collection  district  established  by  act  of  Congress,  and  the 
officers  granting  the  clearance  exercise  their  functions  under  the 
authority  and  control  of  the  laws  of  the  United  States. 

"  In  the  view  we  have  taken  of  this  question,  it  is  unnecessar)^  to 
notice  particularly  the  passages  from  eminent  writers  on  the  laws 
of  nations  which  were  brought  forward  in  the  argument.  They 
speak  altogether  of  the  rights  which  a  sovereign  acquires  and  the 
powers  he  may  exercise  in  a  conquered  country,  and  they  do  not 
bear  upon  the  question  we  are  considering.  For  in  this  country  the 
sovereignty  of  the  United  States  resides  in  the  people  of  the  sev- 
eral States,  and  they  act  through  their  representatives  according  to 
24 


370  EFrECTS    OF    WAR    AS    BETWEIZN    EXE.MIES.         [PART  U. 

the  delegation  and  distriluition  of  powers  contained  in  the  constitu- 
tion. And  the  constituted  anihorities  to  ■whom  tlie  power  of 
making  war  and  conchiding  peace  is  confided,  and  of  determining 
whether  a  conquered  country-  shall  be  permanently  retained  or  not, 
neither  claimed  nor  exercised  any  rights  or  powers  in  relation  to  the 
territory  in  question  but  the  rights  of  Avar.  ,\fter  it  was  subdued  it 
was  uniformly  treated  as  an  enemy's  country  and  restored  to  the 
possession  of  the  ^Mexican  authorities  when  peace  was  concluded. 
aVnd  certainly  its  subjugation  did  not  compel  the  United  States, 
Avhile  they  held  it,  to  regard  it  as  a  part  of  their  dominions,  nor  to 
give  to  it  any  form  of  civil  government,  nor  to  extend  to  it  our 
laws. 

"  Xeither  is  it  necessary  to  examine  the  English  decisions  which 
have  been  referred  to  b}'  counsel.  It  is  true  that  most  of  the  States 
have  adopted  the  principles  of  English  jurisprudence,  so  far  as  it 
concerns  private  and  individual  rights,  and  when  such  rights  are  in 
question  we  habitually  refer  to  the  English  decisions,  not  only  with 
respect,  but  in  many  cases  as  authoritative.  But  in  the  distribution 
of  political  power  between  the  great  departments  of  government, 
there  is  such  a  wide  difference  between  the  power  conferred  on  the 
President  of  the  United  States  and  the  authority  and  sovereignty 
which  belong  to  the  English  crown,  that  it  would  be  altogether  un- 
safe to  reason  from  any  supposed  resemblance  between  them,  either 
as  regards  conquest  in  war  or  any  other  subject  where  the  rights 
and  powers  of  the  executive  arm  of  the  government  are  brought 
into  question.  Our  own  constitution  and  form  of  government  must 
be  our  only  guide.  And  we  are  entirelj^  satisfied  that,  under  the 
constitution  and  laws  of  the  United  States,  Tampico  was  a  foreign 
port,  within  the  meaning  of  the  act  of  1846,  when  these  goods  were 
shipped,  and  that  the  cargoes  were  liable  to  the  duty  charged  upon 
them,  and  we  shall  certify  accordingl}'-  to  the  circuit  court." 

Mr.  Justice  McLeax  dissented. 

Order. — "  This  cause  came  on  to  be  heard  on  the  transcript  of 
the  record  from  the  circuit  court  of  the  United  States  for  the 
eastern  district  of  Pennsylvania,  and  on  the  point  or  question  on 
which  the  judges  of  the  said  circuit  court  were  opposed  in  opinion 
and  which  was  certified  to  this  court  for  its  opinion,  agreeably  to 
the  act  of  Congress  in  such  case  made  and  provided,  and  was 
argued  by  counsel. — On  consideration  whereof,  it  is  the  ojiinion  of 
this  court,  that  Tampico  was  a  foreign  port  within  tlie  meaning  of 
the  act  of  Congress  of  July  30,  1S46,  entitled  'An  act  reducing  the 
duties  on  imports,  and  for  other  purposes,'  and  that  the  goods, 
wares,  and  merchandise  as  set  forth  and  described  in  the  record 


CHAP.  II.]  CROSS    V.  HARIUSOX.  371 

were  liable  to  the  duties  charged  upon  them  under  said  act  of  Con- 
gress. Whereupon  it  is  now  here  ordered  and  adjudged  by  this 
court  that  it  be  so  certified  to  the  said  circuit  court." 


CROSS  V.  HARRISON". 

Supreme  Couet  of  the  United  States,  1853. 

(16  Howard,  164.) 

Character  of  the  military  and  civil  government  set  up  in  California  under 
the  military  occupation  of  the  United  States  army. 

In  the  war  with  Mexico  the  port  of  San  Francisco  was  conquered 
by  the  arms  of  the  United  States,  in  the  year  1846,  and  shoi'tly 
afterwards  the  United  States  had  military  possession  of  all  of 
Upper  California.  Early  in  1847  the  President  of  the  United  States, 
as  constitutional  commander-in-chief  of  the  army  and  navy,  author- 
ized the  military  and  naval  commanders  of  the  United  States  forces 
in  California  to  exercise  the  belligerent  rights  of  a  conqueror  and  to 
form  a  civil  and  military  government  for  the  conquered  territory, 
with  power  to  impose  duties  on  imports  and  tonnage  for  the 
support  of  such  government  and  of  the  army  which  had  the  con- 
quest in  possession. 

This  was  done,  and  tonnage  and  import  duties  were  levied  under 
a  war  tariff,  which  had  been  established  by  the  civil  government  for 
that  purpose  until  official  notice  was  received  by  the  civil  and  mili- 
tary governor  of  California,  that  a  treaty  of  peace  had  been  made 
with  Mexico,  by  which  Upper  California  had  been  ceded  to  the 
United  States. 

Upon  receiving  this  intelligence  the  governor  directed  that  import 
and  tonnage  duties  should  thereafter  be  levied  in  conformity  \\ith 
such  as  were  to  be  paid  in  the  other  ports  of  the  United  States,  by 
the  acts  of  Congress ;  and  for  such  purpose  he  appointed  the  de- 
fendant in  this  suit  collector  of  the  port  of  San  Francisco. 

The  plaintifls  now  seek  to  recover  from  him  certain  tonnage 
duties  and  imposts  upon  foreign  merchandise  paid  by  them  to  the 
defendant  as  collector  between  the  3d  of  February,  1848  (the  date 
of  the  treaty  of  peace),  and  the  l-Sth  of  November,  1849  (when  the 
collector  appointed  by  the  President,  according  to  law,  entered  upon 
the  duties  of  his  office),  upon  the  ground  that  they  had  been  illegally 
exacted.  The  formation  of  the  civil  government  in  California,  when 
it  was  done,  was  the  lawful  exercise  of  a  belligerent  right  over  a 


372  EFFECTS   OF    WAR   AS    BETWEEN    ENEMIES.  [PAIIT  II. 

conquered  territory.  It  was  the  existing  government  when  the  ter- 
ritory was  ceded  to  the  United  States,  as  a  conquest,  and  did  not 
cease  as  a  matter  of  course,  or  as  a  consequence  of  the  restoration  of 
peace ;  and  it  was  ris^htfully  continued  after  peace  was  made  witli 
^lexico,  uniil  Congress  legishited  otherwise,  under  its  constitutional 
power,  to  dispose  of  and  make  all  needful  rales  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States. 

The  tonnage  duties  and  duiit's  upon  foreign  goods  imported  into 
San  Francisco  Avere  legally  demanded  and  lawfully  collected  hy  the 
civil  governor,  Avhilst  the  war  continued,  and  afterwards,  from  the 
ratification  of  the  treat}^  of  peace  until  the  revenue  system  of  the 
United  States  was  put  into  practical  operation  in  California  under 
the  acts  of  Congress  passed  for  that  purpose. 


THE  AMEPJCAX  IXSURAXCE  COMPANY  v.  CAXTER. 

Supreme  Court  of  the  Uxited  States,  1828. 

( 1  Peters,  511.) 

StatiTS  of  the  people  of  Florida  after  the  cession  of  that  territory  to  the  United 
States. 

The  folloA^ing  is  an  extract  from  the  judgment : — 

^Marshall,  C.  J.: — "The  course  which  the  argument  has  taken  will 
require,  that,  in  deciding  this  question,  the  Court  should  take  hito 
view  the  relation  m  which  Florida  stands  to  to  the  United  States. 

"  The  Constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties ;  conse- 
quently, that  government  possesses  tlie  power  of  acquiring  territory 
either  by  conquest  or  by  treaty. 

"The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued,  to 
consider  the  holding  of  conquered  territory  as  a  mere  military  oc- 
cupation, until  its  fate  shall  be  determined  at  the  treaty  of  peace. 
If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed  and  the 
ceded  territory  becomes  a  part  of  the  nation  to  which  it  is  an- 
nexed ;  either  on  the  terms  stipulated  in  the  treaty  of  cession,  or  on 
such  as  its  new  master  shall  impose.  On  such  transfer  of  territory, 
it  has  never  been  held,  that  the  relations  of  the  inhabitants  with 
each  other  undergo  any  change.  Their  relations  witli  their  former 
sovereign  are  dissolved,  and  new  relations  are  created  between 
them  and  the  government  which  has  acquired  their  territory.  The 
same  act  which  transfers  their  country,  transfers  the  allegiance  of 


CHAP.  II.]  JECKEIl    V.    MONTGOMERY.  873 

those  who  remain  in  it;  and  the  hiw,  wiiieh  may  be  denominated  po- 
litical, is  necessarily  changed,  althougli  tliat  ^vhich  regulates  the  in- 
tercourse and  general  conduct  of  individuals,  remains  in  force  until 
altered  by  the  newly-created  power  of  the  State. 

"On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  tlie 
United  States.  The  6tli  article  of  the  treaty  of  cession  contains  the 
following  provision :  '  The  inhabitants  of  the  territories  which  his 
Catholic  majesty  cedes  to  the  United  States  by  this  treaty,  shall  be 
incorporated  in  the  Union  of  the  United  States  as  soon  as  may  be 
consistent  wuth  the  prmciples  of  the  federal  Constitution ;  and  ad- 
mitted to  the  enjoyment  of  the  privileges,  rights,  and  imnumities  of 
the  citizens  of  tlie  United  States.' 

"This  treaty  is  the  law  of  the  land  and  admits  tlie  inhabitants  of 
Florida  to  the  enjoyment  of  the  privileges,  rights,  and  innnunities 
of  the  citizens  of  the  United  States.  It  is  umiecessary  to  inquire 
whether  this  is  not  their  condition,  independent  of  stipulation. 
They  do  not,  however,  participate  in  political  power;  they  do  not 
share  in  the  government,  till  F'lorida  shall  become  a  state.  In  the 
meantime  Florida  continues  to  be  a  territory  of  the  United  States  ; 
governed  by  virtue  of  that  clause  in  the  Constitution  which  em- 
powers Congress  '  to  make  all  needful  rules  and  regulations  re- 
specting the  territory  or  other  property  belonging  to  the  United 
States.'" 


JECKER  V.   MONTGOMERY. 

Supreme  Court  of  the  Uxited  States,  1851. 

( 13  Howard,  498.) 

Neither  the  President  of  the  United  States,  nor  anj^  inferior  executive  officer, 
can  estabUsh  a  court  of  prize,  in  territory  occupied  by  American  troops,  com- 
petent to  take  jurisdiction  of  a  case  of  capture /;<re  belli. 

After  California  had  been  occupied  by  the  United  States  forces, 
during  the  war  with  Mexico,  a  Prize  Court  was  set  up  at  Monterey, 
at  the  request  of  Commodore  Biddle,  and  sanctioned  by  the  Presi- 
dent. 

An  American  vessel — the  Admittance — w^as  captured  for  trading 
with  the  enemj%  April  7,  1847,  and  condemned  by  this  court  at 
Monterey ;  and  the  vessel  and  cargo  were  sold  under  the  sentence. 

The  question  finally  came  before  the  Supreme  Court. 

Chief  Justice  Tankv,  in  pronouncing  the  judgment,  said  hi  respect 
of  the  power  of  establishing  courts : — 


374  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.       [PART  U. 

u «  *  *  Iji  I'elation  to  tlie  proceedings  in  the  court  at  Monterey, 
which  is  the  subject  of  the  first  deuuirrer,  the  decision  of  tne  circuit 
court  is  correct. 

"  All  captures  J?<?-e  belli  are  for  the  benefit  of  the  sovereign  under 
whose  authority  they  are  made  ;  and  the  validity  of  tlie  seizure  and 
the  question  of  prize  or  no  prize  can  be  determined  in  his  own 
courts  only,  upon  which  he  has  conferred  jurisdiction  to  try  the 
(piestion.  And  under  the  Constitution  of  tlie  United  States  the 
judicial  power  of  the  general  government  is  vested  in  one  supreme 
court,  and  in  such  inferior  courts  as  Congress  shall,  from  time  to 
time,  ordain  and  establish.  Every  court  of  the  United  States,  there- 
fore, must  derive  its  jurisdiction  and  its  authority  from  the  Consti- 
tution or  the  laws  of  the  United  States.  And  neither  the  President 
nor  any  military  officer  can  establish  a  court  in  a  conquered  countr}'^, 
and  authorize  it  to  decide  upon  the  rights  of  the  United  States,  or 
of  individuals  in  prize  cases,  nor  to  administer  the  law  of  nations. 

"  The  courts  established  or  sanctioned  in  Mexico  during  the  w^ar 
by  the  commanders  of  the  American  forces  were  nothing  more  than 
the  agents  of  the  military  power,  to  assist  in  preserving  order  in  the 
conquered  territory,  and  to  protect  the  inhabitants  in  their  persons 
and  property  while  it  was  occupied  by  the  American  arms ;  they 
were  subject  to  the  military  power,  and  their  decisions  under  its 
control,  whenever  the  commanding  officer  thought  proper  to  inter- 
fere. The}'  were  not  courts  of  the  United  States,  and  had  no  right 
to  adjudicate  upon  a  question  of  prize  or  no  prize.  And  the  sentence 
<-i  condemnation  in  the  court  at  Monterey  is  a  nullity,  and  can  have 
no  effect  upon  the  rights  of  any  party. 

"  The  second  demurrer  denies  the  authority  of  the  district  court 
to  adjudicate,  because  the  property  had  not  been  brought  within  its 
jurisdiction.  But  that  proposition  cannot  be  maintained  ;  and  a 
prize  court,  when  a  proper  case  is  made  for  its  interposition,  will 
proceed  to  adjudicate  and  condemn  the  captured  property  or  aw'ard 
restitution,  although  it  is  not  actually  in  the  control  of  the  court. 
It  may  always  proceed  in  rem  whenever  the  prize  or  proceeds  of  the 
f)rize  can  be  traced  to  the  hands  of  any  person  whatever."  ^ 

'  See  also  Leitensdorfer  y .  Webb.  20  Howard,  176  : 

In  the  case  of  the  Grapeshot,  9  Wallace,  129  (1869),  the  Supreme  Court  decided 
that,  during  the  civil  war,  when  the  national  forces  occupied  parts  of  the  revolted 
territory  it  was  within  the  authority  of  the  President,  as  commander-in-chief, 
to  estabUsh  provisional  courts  to  try  causes  arising  under  the  laws  of  the  State  or 
of  the  United  States.  And  see  Mechanics  and  Trad eis'  Bank  v.  Union  Bank, 
22  Wallace,  276  ;  U.  S.  v.  Diekebnaa,  92  U.  S.,  52U  ;  Dowx.  Johnson,  100  U.  S., 
158. 


CHAP.  II.]  CASE   OF   GUEEIN.  375 

UNITED  STATES  v.  MORENO. 

Supreme  Coukt  of  the  Uxited  States,  1863. 

(1  Wallace,  400.) 

Conquest  or  cession  of  territory  works  no  change  in  private  titles  to  land. 

The  following  is  an  extract  from  the  opinion  of  the  court  delivered 
by  Mr.  Justice  Swayne  : — 

"  California  belonged  to  Spain  by  the  rights  of  discovery  and  con- 
quest. The  government  of  that  country  established  regulations  for 
transfers  of  the  public  domain  to  individuals.  When  the  sovereignty 
of  Spain  was  displaced  by  the  revolutionary  acticm  of  Mexico,  the 
new  government  established  regulations  upon  the  same  subject. 
These  two  sovereignties  are  the  spring  heads  of  all  the  land  titles  in 
California,  existing  at  the  time  of  the  cession  of  that  country  to  the 
United  States  by  the  treaty  of  Guadalupe  Hidalgo.  That  cession  did 
not  impair  the  rights  of  private  property.  They  were  consecrated 
by  the  law  of  nations,  and  protected  by  the  treaty. 

"  The  treaty  stipulation  was  but  a  formal  recognition  of  the  pre- 
existing sanction  in  the  law  of  nations.  The  act  of  March  3d,  IcSol, 
v/as  passed  to  assure  to  the  inhabitants  of  the  ceded  territory  the 
benefit  of  the  rights  of  property  thus  secured  to  them.  It  recognizes 
alike  legal  and  equitable  rights,  and  should  be  administered  in  a 
large  and  liberal  spirit.  A  right  of  any  validity  before  the  cession 
was  equally  valid  afterwards,  and  while  it  is  the  duty  of  the  court 
in  the  cases  which  may  come  before  it  to  guard  carefully  against 
claims  originating  in  fraud,  it  is  equally  their  duty  to  see  that  no 
rightful  claim  is  rejected.  No  nation  can  have  any  higher  interest 
than  the  right  administration  of  justice." 

CASE  OF  GUERIN. 

Court  of  Appeal  of  Nan^cy,  1872. 

(Dalloz,  1872,  II.,  p.  185.) 

The  occupation  of  a  department  of  France  by  the  troops  of  the  enemy  does  not 
suspend  therein  the  civil  and  criminal  laws  of  France  ;  which  continue  obliga- 
tory upon  all  Frenchmen,  so  long  at  least  as  they  have  not  been  expressly  and 
specifically  abrogated  by  the  exigencies  of  the  war. 


37G  EFFECTS    OF   WAR   AS    BETWEEN    ENEMIES.         [I'AKT  II. 

During  the  inilitary  (H,'CU[);Uion  of  various  departments  of  France, 
by  the  German  army,  in  1870-71,  the  German  autliorities  therein 
caused  the  trees  in  the  forests  of  the  state  to  be  cut  do\A'n  and  sold, 
deriving  therefrom  a  certain  revenue.  In  this  case,  a  French  citizen 
engaged  in  a  traflfic  in  tliese  trees,  purchasing  them  from  tlie  Ger- 
mans. After  the  war  lie  was  prosecuted  for  a  breach  of  the  forestry 
laws  of  France. 

La  Cour. — "  Attendn  qu'il  n'appartient  pas  a  la  cour  de  se  pronon- 
cer  sur  le  caractere  legitime  ou  illegal  des  actes  emanes  de  Tautorite 
allemande ;  que  la  seule  (piestioii  soumise  a  son  a[)proeiation  par  le 
sysleme  de  defense  du  prevenu  qui  se  degage  nettement  des  conclu- 
sions par  lui  prises  en  premiere  instance,  est  celle  de  savoir  si,  dans 
le  cas  meme  ofi  I'ennemi  envahisseur  n'aurait  fait  qu'user  d'un  droit 
en  vendant  les  coupes  de  la  Bousule  et  de  la  Maquinicre,  dans  la 
foret  domaniale  de  Champenoux,  il  pouvait  etre  permis  a  des  sujets 
fran5ais  de  s'en  rendre  adjudicataires  et  d'exploiter  ces  coupes,  avant 
et  apres  la  conclusion  de  la  paix,  en  violation  de  la  loi  fran9aise,  en 
se  passant  de  toute  delivrance  et  autorisation  de  I'administration 
forestiere,  sans  encourir  les  penalites  edictees  par  le  code  forestier  ; — 
Attendu  qu'il  est  de  principe  que  roccupation  du  territoire  par  Ten- 
nemi  n'entraine  pas  la  suspension  du  droit  politique  ou  prive  du 
pays  occupe  ;  que  les  lois  civiles  et  penales  conservent  au  contraire 
tout  leur  empire,  a  moins  qu'elles  n'aient  ete  Tobjet  d'abrogations  ex- 
presses et  speciales  commandees  par  les  exigences  de  la  guerre ;  que 
telle  est  Topinion  des  auteurs  les  plus  accredites  qui  out  ecrit  sur  le 
droit  international ; — Attendu  qu'en  constituant  en  Lorraine  un  gou- 
vernement  militaire,  avec  adjonction  d'un  commissaire  civil,  le  sou- 
verain  envahisseur,  loin  d'abroger  les  lois  fran^aises,  a,  au  contraire, 
admis  qu'elles  resteraient  en  vigtieur ;  que  le  commissaire  civil  de 
Lorraine,  lorsqu'il  a  i)ris  possession  de  ses  fonctions,  a  contirme 
leur  maintien  en  disant  dans  sa  proclamation  du  4  sept.  1870  :  '  Toutes 
vos  lois,  en  tant  que  I'etat  de  guerre  n'en  reclame  pas  la  suspension, 
seront  respectees.  La  justice  conservera  son  libre  cours  ' ; — Attendu 
qu'il  suit  de  la  que  les  citoyens  franyais  n'ont  jamais  ete  delies,  par 
le  fait  de  I'invasion,  de  leur  devoir  d'obeissance  envers  les  lois  de 
leur  pays ;  que  le  code  forestier  franyais,  toutes  ses  prescriptions  et 
ses  defenses  n'ont  done  i)as  cesse  de  s'imposer  aux  sujets  franyais, 
et  que,  des  lors,  ceux-ci  ifcinL  ])u  legitimement  enlevi'r  (juoi  que  ce 
soit  dans  les  forets  domaniales  sans  la  permission  des  agents  fran- 
yais,  qui  sont  toujours  restes  la  seule  autorite  forestiere  legitime  du 
pays; — Attendu  que  si  des  franyais,  mus  par  un  sentiment  de  cupi- 
dite  assez  fort  pour  eteindre  en  eux  tout  patriotisme,  se  sont  rend  us 
comme  Guerin  adjudicataires  a  vil  prix  de  coupes  vendues  par  Tau- 


CHAP.  TI.]  MOHR    AND    HAAS   V.  HATZFELD.  877 

ti)rite  alleinande,  ils  out  ag'i  u  lours  risques  et  pei'ils,  a  cliai'ge  [)ar 
eux  (Vohtenir,  sMls  le  pouvaient,  do  radminist ration  forestiere,  la 
Iterniissiou  (Fexploiter  ces  coupes,  siiiou  eu  eucourant  les  riti,MU'ui's  de 
la  loi  peiiale  qui  ])oui'rait  leuv  etre  appllquce  lorsque  Pautorilu  fi'an- 
9aise  aurait  recouvro,  par  la  conclusion  de  la  paix,  toute  sa  liberie 
d'action  et  la  plenitude  de  sa  puissance  repressive."  ^ 


MOIIR  AXD  ITAAS  v.  ITATZFELD. 

CouKT  OF  Appeals  of  Xancv,  1872. 

{Dalloz,  1873,  II., p.  229.) 

The  military  occupation  of  a  territory  confers  upon  the  invader  the  riglit  to 
tlae  usufruct  and  revenues  only  of  the  jjublic  domain;  the  French  courts  will  not 
recognize  as  valid  the  sale  of  old  trees  (during  the  war  of  1870-71)  on  the  public 
domain,  which  were  reserved  at  the  time  of  the  annual  cutting.  They  are  as 
inalienable  as  the  soil  of  the  forest  itself. 

La  Cour: — "En  ce  qui  touche  I'appel  princii)al  (des  sieurs  ^lolir 
et  Haas) : — Attendu  que,  le  24  oct.  1870,  le  gouvernement  alleniand, 
represente  par  le  comte  de  Villers,  son  comuiissaire  civil  en  Lor- 
raine, a  vendu  aux  sieurs  Samelsohn  et  Sackilr,  banquiers  a  Berlin 
a  raison  de  3  thalers  Tun,  plus  de  15,000  clicnes  d'au  moins  5  metres 
de  hauteur  et  de  50  centimetres  de  diametre,  mesures  a  1  metre  25 
centimetres  au-dessus  du  sol,  a,  prendre  dans  les  forets  domaniales 
des  dupartements  de  la  Meuse  et  de  la  Meurtlie  ; — Que,  des  le  8  nov. 
suivant,  les  acquereurs  retrocedaient  purement  et  simplement  le 
benefice  de  leur  marche  aux  sieurs  Mohr  et  Elaas,  negociants  a  ]\[an- 
lieim,  lesquels,  apres  avoir  fait  abattre  environ  9,000  arbres,  ont,  a 
leur  tour,  transmis  tous  leurs  droits  an  sieur  Ilatzfeld,  de  Nancy, 
par  acte  sous  signatures  privees  du  15  mars  1871 ; — Qu'aux  termes 
de  cet  acte,  le  sieur  Hatzfeld  devait  payer,  par  arbre  abattu  on  sur 
pied  dont  il  prendrait  possession,  non  plus  3  thalers,  mais  40  fr.,  plus 
140,000  fr.  pour  frais  d'exploitation  et  depenses  de  toutes  sortes  ; — 
Qu'il  versa  150,000  fr.  comptant,  et  que,  pour  le  surplus,  il  souscrivit 

*  The  same  rule,  says  Dalloz,  was  enforced  in  respect  to  the  customs  laws:  and 
even  in  that  part  of  the  occupied  territory  where  the  Germans  collected  and 
appropriated  the  duties. 

"  Les  introductions  de  marchandises  faites  en  fraude  auxdites  lois  de  douane 
pendant  Toccupation,  encore  nieme  qu'elles  auraient  ote  tolen^s  par  les  autorit^s 
etrangeres  commandant  dans  ces  d«partements,  sont  poursuivies  :i  l)on  droit 
apres  le  retabhssement  du  service  de  la  douane  frangaise."  (Dalloz,  1872,  II. ,  185, 
notes  3  and  4.) 


578  EFFECTS    OF    AVAR    AS    BETWEEN    ENEMIES.         [PAKT  U. 

les  traites  jusqii'a  eoncuiTeuce  de  300,000  fr. ; — Attendu  que,  mis  en 
deiiieure  d'executer  les  conventions  par  lui  souscrites  le  15  mars 
1871,  et  confirmees  le  16  avril  de  la  mOme  annee,  le  sieur  Ilatzfeld 
se  refuse  a  cette  execution,  en  excipant  de  nullites  que  la  cour  a, 
apres  le  tribunal,  le  droit  et  le  devoir  d'apprecier  ; — Que  sa  compe- 
tence resulte  d'abord  de  la  clause  par  laquelle  les  parties  se  sont 
eng-agees  a  saisir,  le  cas  eclieant,  les  tribunaux  de  la  ville  de  Xancy, 
oh  elles  feraient  election  de  domicile  au  greffe  du  tribunal  de  com- 
merce, de  toutes  les  contestasions  qui  pourraient  s'elever  entre  elles 
a  Toccasion  de  leur  traite ; — Qu'elle  a  ete  de  plus  formellement  re- 
connue  i)ar  Tambassadeur  d'.Vllemagne,  qui,  prie  d'intervenir  pour 
la  conservation  des  droits  des  sieurs  Molir  et  Haas,  a  repondu  a  ces 
derniers,  le  8  sept.  1871,  au  nom  de  son  gouvernement,  que  '  Taffaire 
devait  etre  jugee  suivant  le  droit  civil  francais.' 

"  Attendu  que  la  premiere  et  la  plus  delicate  des  questions  a  exa- 
miner et  a  resoudre  est  celle  de  savoir  si  le  gouvernement  allemand 
pouvait  faire  ce  qu'il  a  fait  le  24  octobre  1870,  et  qu'a  cet  egard  le 
droit  international,  bien  plus  que  le  droit  civil,  pose  des  regies  in- 
spirees  par  la  conscience  publique,  et  dont  il  appartient  a  la  magistra- 
ture,  en  les  appliquant  sans  faiblesse,  d'assurer  la  diffusion  et  le 
succes  ; — Qu'il  ne  s'agit  point  de  meconnaitre  le  droit  du  vainqueur, 
mais  de  le  maintenir  dans  les  limites  que  lui  assignent  les  prece- 
dents, I'usage,  la  raison  et  la  justice  ; — Que  ce  droit,  en  ce  qui  touclie 
les  inmieubies,  ne  consiste  que  dans  la  piisede  possession  temporaire 
des  domaines  de  I'Eta-t  ennemi,  et  dans  la  perception  de  leurs  fruits 
et  de  leurs  revenus  ; — Qu'en  cela  tons  les  auteurs  sont  d'accord,  et 
que  deux  des  plus  recents  et  des  moins  suspects,  les  celebres  profes- 
seurs  de  I'ecole  allemande,  Bluntsclili  (art.  640),  et  Ileffter.  *  *  * 
Quil  faut  done  proclamer  que  les  fruits  et  les  revenus  des  proprietes 
domaniales  appartiennent  seuls  au  vainqueur,  et  que,  lorsque  celui- 
ci  dispose  d'autre  chose,  il  dispose  de  ce  qui  ne  lui  appartient  pas ; 

"  Attendu  que,  reduite  a  ces  termes,  la  question  ne  j^resente  plus 
la  moindre  difficulte,  puisqu'il  ne  reste  plus  qu'a  rechercher  si  les 
clieiies  anciens  vendus  le  24  oct.  1870  aux  sieurs  Samelsohn  et 
Sackiir,  puis  revendus  le  15  mars  1871  au  sieur  Ilatzfeld,  constituent 
des  fruits  ou  des  revenus,  ce  que  personne  n'oserait  pretend  re  ; — Que 
ces  vieux  chenes,  I'honneur  et  la  ricliesse  de  la  foret,  marques  en 
reserve  lors  des  coupes  annuelles,  font  partie  integrante  du  sol  lui- 
meme,  au  repeuplement  duquel  ils  concourent,  et  ne  sont  pas  moins 
inalienables  que  lui ; — Que  leur  vente  isolee,  apres  les  coupes  ordi- 
naires  et  en  dehors  de  ces  coupes,  presente  tons  les  caracteres  d'an 
fait  anormal,  exceptionnel,  et  ne  pent  s'operer,  aux  termes  de  Tart. 
16  c.  for.,  qu'en  vertu  d'un  decret  special ; — Qu'en  vendant  les  arbres 


CHAP.  II.]  MOini    AND    HAAS    V.  HATZFELD.  379 

objet  dii  litige,  sans  r;icconiplisseineiit  dc  formalites  protect  rice,  en 
contravention  a  lui  anieiiag-euient  rcg-ulier,  le  conite  de  Villers,  et 
apres  lui  les  sieurs  ^lolir  et  Haas,  out  done  vendu  ce  qii'ils  n'avaient 
pas  le  droit  de  vendre,  ce  que  le  proi)i'ietaire  aurait  dil  i-etrouver 
aprc'S  I'invasion  et  I'occupation,  en  ini  mot  la  chose  d'autrui,  et  en 
tons  cas  une  chose  qui  n'ctait  pas  dans  le  conimercc.  *  *  * 

"  Que  le  Gouvernenient  alleniand  lui-niunie  a  niontre,  par  son  atti- 
tude et  son  language,  qu'il  considerait  conune  ineffieace  le  contrat 
intervenu  entre  les  sieurs  Molir  et  Haas  et  le  sieur  Ilatzfeld,  en  n'in- 
sistant  pas  pour  son  insertion  dans  le  traite  de  paix,  en  refusant 
ensuite  de  prevenir  par  son  intervention  le  proces  actuel,  en  laissant 
enfin  sans  uu  mot  de  reponse  la  declaration  suivant  des  ph'nipoten- 
tiaires  franyais,  consignee  au  pn^tocole  de  signature  de  la  convention 
additionnelle  au  traite  de  paix  du  10  mai  1871 :  'Des  alienations  de 
coupes  de  bois  dans  les  forets  de  I'Etat  out  etc  consenties  durant  la 
guerre,  sur  le  territoire  franyais,  par  les  autorites  civiles  et  militaires 
allemandes.  A  raison  des  circonstances  au  milieu  descjuelles  out  ete 
souscrits  les  contrats  passes  a  ce  sujet,  le  Gouvernenient  franyais  ne 
saurait,  en  ce  qui  le  concerne,  reconnaitre  a  ces  contrats  ni  valeur 
legale  ni  force  obligatoire,  et  entend  repousser  toute  responsabilite 
pecuniaire  ou  autre  que  les  tiers  interesses  pourraient  de  ce  chef 
vouloir  faire  peser  sur  lui ; ' — Que  cette  declaration  solennelle  du 
Gouvernenient  franyais,  non  contredite  par  les  plenipotentiaires  alle- 
mands,  a,  au  point  de  vue  du  droit  international,  une  importance 
dont  les  juges  du  droit  civil  sont  autorises  a  s^emparei-,  pour  rendre 
plus  manifeste  encore  le  bien  juge  de  la  sentence  frappee  d'appel ; 

"  En  ce  qui  touche  I'appel  incident  du  sieur  Ilatzfeld  : — Attendu 
qu'il  ne  suffisait  pas  de  condamner  les  sieurs  Mohr  et  Haas  arestituer 
les  150,000  fr.  par  eux  indument  reyus  ;  qu'il  fallait  aussi  les  con- 
damner a  payer  une  somme  equivalente  au  pi'ofit  que  le  sieur  Ilatz- 
feld aurait  tire  de  ce  capital,  s'il  ne  s'en  etait  pas  dessaisi ; — Que 
sans  cela  les  appelants  s'enrichiraient  au  prejudice  d'autri,  ce  que  ne 
permettent  ni  I'equite  ni  la  justice  ; 

"Par  ces  motifs,  rejette  comme  nial  fondo  I'appel  principal; — 
Reyoit  au  contraire  I'ajjpel  incident,  et,  y  faisant  droit,  rerorme  le 
jugement  de  premiere  instance  en  ce  qu'il  a  refuse  a  Ilatzfeld  toute 
espece  de  donimages-interets ; — Condanine  les  appelants  a  payer  a 
I'intime,  a  titre  de  dommages-interets,  la  somme  de  11,600  fr.,  avec 
interets  a  partir  de  ce  jour,  taut  du  capital  que  de  la  somme  allouee 
a  titre  de  dommages-interets  ; — Condamne  les  sieurs  Mohr  et  Haas 
a  I'amende  et  aux  frais,  etc." 


880  EprEcis  or  wah  as  between  ene^iies.      [paut  u. 


VILLASSEQUE'S  CASE. 

CouR  DE  Cassation,  1818. 

(Ortolan  :  Diplomatie  de  la  Mer,  2d  Ed..  I..  324.) 

A  crime  committed  by  a  French  citizen  in  Spanish  territory,  occupied  and 
administered  by  the  French  army,  held,  to  be  committed  in  a  foreign  country. 

Yillasseque,  a  Frenchman,  was  charged  with  the  crime  of  assas- 
sination, committed  in  the  territory  of  Catalonia,  Spain,  during-  tlie 
militarj^  occupation  by  France  in  the  summer  of  1811.  It  was  con- 
tended by  the  prosecution  tliat,  inasmuch  as  Catalonia  was  occupied 
by  French  troops,  and  tlie  government  administered  by  French 
authorities,  it  must  be  considered  as  French  territory.  On  appeal 
from  "  la  Cour  d'assises  des  Pyrenees  Orientales,"  "  La  Cour  de  Cas- 
sation "  pronounced  the  following  judgment : 

"  Attendu.  .  .  . ,  qu'en  regie  generale,  le  droit  de  poursuivre  un 
crime  n'appartient  qu'au  magistrat  du  territoire  sur  lequel  le  crime 
a  ete  commis  ou  s'est  prolonge  ; 

"  Que  les  settles  exceptions  admises  a  ce  principe  par  le  Code 
d'instruction  criminelle  sont  renfermees  dans  les  articles  5,  6  et  7, 
ci-dessus  cites ; 

"  Que  la  demande  de  Yillasseque,  tendante  a  ce  que  le  crime  porte 
dans  le  premier  chef  d'accusation  ne  fut  point  soumis  a  des  debats, 
parce  qu'il  aurait  ete  commis  en  pays  etranger  et  sur  la  jiersonne 
d'un  etranger,  et  qu'il  ne  rentrait  dans  aucune  des  exceptions  desdits 
articles  5,  6  et  7,  a  ete  rejetee  par  la  Cour  d'assises,  d'aprcs  le  seul 
motif  qu'a  Tepoque  de  ce  crime  la  Catalogue  etait  occupoe  par  les 
troupes  franyaises  et  administree  par  des  autorites  fran^-aises,  ce  qui 
suffisait  pour  qu'elle  fut  alors  reputee  partie  integrante  du  territoire 
franyais ; 

"  Mais  que  cette  occttpatiou  et  cette  administration  par  des  troupes 
et  des  autorites  franyaises  n'avaient  pas  connnunique  aux  habitants 
de  la  Catalogue  le  titre  de  Franyais,  ni  a  leur  territoire  la  qualite  de 
territoire  franyais  ;  que  cette  communication  n'aurait  pu  resulter 
que  d'un  acte  de  reunion  emane  de  I'autorite  publique,  lequel  n'a 
jamais  existe;  Casse,  etc." 


CilAr.  U.J  THE  ELECTUii   OF   HESSE   CASSEL.  38l 


THE  ELECTOR  OF  HESSE  CASSEL. 

{Phillimore's  International  Laiv,  III.,  841.) 

Hesse  Cassel  was  conquered  by  the  first  Napoleon  in  1806,  and  remained  for 
about  a  year  under  his  immediate  control  ;  when  it  was  annexed  to  the  new 
kingdom  of  Westphalia,  and  formed  a  part  of  that  kingdom  till  after  the  battle 
of  Leipzig,  in  1813. 

The  (question  was  whether  debts  owing  to  the  Elector  were  validly  discharged 
by  a  i^ayment  to  Napoleon  and  receiving  from  him  a  (quittance  in  full. 

The  legal  title  of  the  Emperor  was  set  forth  as  follows  : — 

"  Que  par  suite  de  la  conquete  de  I'Electorat  de  Ilesse,  rEmpereur 
a  confisque  au  profit  de  sou  domaine  extraordinaire  les  creauces  aji- 
parteuautes,  soit  au  ci-divant  Electeur  de  Hesse,  soit  aux  ctats  et 
proviuces,  dont  11  avait  etc  pris  possessiou,  et  a  dcalarc,  qu'il  euteu- 
dait,  qu'aucun  debiteur  ne  put  se  liberer  valablenieut  (pi'au  tresor 
dudit  domaine." 

One  of  the  debtors  of  the  Elector  was  Count  von  Hahn,  a  subject 
of  Mecklenburg,  and  having  large  estates  in  that  duchy.  The  mort- 
gage of  these  estates  lield  by  the  Elector  of  Ilesse,  was  duly  regis- 
tered in  the  proper  office  in  Mecklenburg. 

The  Duke  of  Mecklenburg,  at  the  instance  of  Napoleon,  issued  an 
order  (circular  Rescript),  which,  after  reciting  that  Napoleon,  being 
possessed  of  the  sovereignty  of  Ilesse  Cassel,  was  possessed,  as  an 
accessory  to  the  principal,  of  tlie  debts  due  to  that  sovereign,  directed 
the  Court  of  Registration  to  record  as  extinguislied  those  mortgages 
in  favor  of  Hesse  Cassel,  for  which  a  particular  discharge  or  receipt 
had  been  given  by  Napoleon,  or  by  his  appointee  for  that  purpose. 

The  Rescript  was  dated  the  15th  of  June,  1810.  It  appears  that 
it  was  obeyed,  but  that  a  particular  minute  of  the  circumstance  of 
the  extinguishment  of  the  mortgage  was  also  recorded,  so  as  in  some 
measure  to  leave  open  the  question  of  the  lawfulness  of  the  discharge. 

The  affairs  of  the  Count  became  embarrassed,  and  after  Ins  death 
creditors  claimed  his  property  ;  among  them  was  the  restored  Prince 
of  Ilesse  Cassel.  The  actor  commiDds  (or  official  assignee)  of  the 
creditors  brought  the  question  into  court. 

The  Mecklenburg  court  of  justice  at  Giistrow  first  entertained  the 
question.  The  Prince  denied  l)oth  the  validity  of  the  discharge  and 
the  legality  of  the  Mecklenburg  order  of  1810,  and  asserted  that  Na- 


882  EFFECTS    OF    WAR   AS   BETWEEN    EXE.MIES.         [I'AKT  II, 

poleon  possessed  himself  of  the  money  in  the  character  of  a  robber, 
and  not  of  a  conqueror. 

Tliis  matter  was  then  remitted  to  the  Prussian  Fniversit}'  of  Bres- 
hiu.  Tlie  decision  of  this  tribunal  (May  29,  182 4)  was  in  substance 
that  the  Prince  might  recover  that  part  of  the  debt  which  had  not 
been  actually  paid  in  money  to  Xapoleon,  but  no  more.  Tt  had  hap- 
pened that  in  many  cases  Xapoleon  had  remitted,  no  doubt  in  order 
to  induce  payment,  a  considerable  portion  of  the  original  debt, 
giving,  however,  a  discharge  from  the  whole. 

Both  parties,  being  dissatisfied  with  this  judgment,  appealed  to 
the  Holstein  University  of  Kiel,  which,  however,  confirmed,  with 
some  difference  as  to  the  costs,  the  sentence  (March  24,  18ol).  But 
frcMu  this  sentence  the  court  itself  sanctioned  an  appeal  ^'ad  impar- 
tiales  e.vteras"  that  is,  to  anotlier  German  University. 

This  learned  body  (name  not  given)  delivered  at  great  length  the 
reasons  of  their  judgment. 

They  rightly  said  that  the  real  question  was,  whether  Xapoleon 
had,  or  had  not,  become  the  true  creditor  of  the  Hesse  Cassel  funds. 
They  drew  a  broad  distinction  between  the  validity  of  acts  done  by 
a  mere  transient  conqueror  and  acts  done  by  him  after  the  kingdom 
had  been  wholly  subdued,  and  the  subjects  had  either  expressly,  or 
by  necessary  implication,  accepted  him  as  their  ruler. 

In  the  former  case  the  conqueror's  right  was  confined  to  the  effects 
of  )iis  private  acts,  to  the  occupatio  bellica,  and  required  actual 
seizure  and  possession  for  its  valid  exercise. 

In  the  latter  case  the  rights  and  title  of  the  conqueror  had  l)een 
ratified  by  the  public  act  of  the  state.  As  Xapoleon's  right  and  title 
was  of  the  latter  kind,  the  fact  that  these  funds  were  the  private 
property  of  the  Prince,  and  not  the  public  property  of  the  state, 
became  of  no  importance.  They  rejected  the  consideration  of  the 
justice  or  injustice  of  the  war  which  Xapoleon  had  waged  against 
the  Prince,  wisely  holding  that  the  presumption  of  law,  upon 
which  they  were  bound  to  act,  was  in  favor  of  its  justice.  Xor  did 
it  matter  that  the  Pi4nce,  instead  of  giving  battle  to  Xapoleon,  had 
departed,  and  resigned  his  country  to  the  military  occupation  of  tlie 
enemy.  They  pointed  out  that  the  Prince  had,  from  the  time  of  liis 
departure  or  abdication,  been  an  active  enemy  of  the  new  govern- 
ment established  under  Xapoleon  and  Jerome,  and  that,  by  the  laws 
of  all  counti'ies,  the  property  of  a  person,  qui  sub  2:>uhlico  egit  against 
the  state,  was  confiscable. 

They  rejected  the  doctrine  that,  because  the  Prince  had  retained 
possession  of  the  instruments  containing  the  written  acknowl- 
edgments of  the  debtors,  he  therefore  had  constructive  possession 


CHAr.  II.]  THE   ELECTOR    OF    HESSE   CASSEL.  383 

of  the  debts,  the  circnmstances  beinj^  consich'rcd  under  wliich  the 
juoney  had  been  borrowed — ado[)liii,ij;-  tlie  priii(ii»le  of  the  Roman 
Iaiw,  ^^  Dissol/Uce  q'uantlt((tis  retentnin  iitstrtnuanttdii  inefficax  2'>C)tes 
creditorem  I'emanere     *     *     *     non  est  ambigni  juris.'''' 

They  considered  how  the  question  was  affected  by  the  return  of 
the  Prince,  and  by  liis  rechimation  of  his  former  property,  and  they 
held  that  the  principle  of  the  decision  of  tlie  Amphictyons  in  the 
case  of  the  Thebans  and  Thessalians  was  sound  law,  and  that  it  had 
been  so  treated  by  almost  all  jurists,  ancient  and  modern. 

They  considered  the  general  question  whether,  after  peace,  there 
did  or  did  not  take  place  a  restitutio  itt  i)ite(/rum  with  respect  to 
those  who  had  been  dispossessed  by  war.  They  held  that,  even  ac- 
cording to  the  letter  of  the  Roman  Law,  the  restored  owner  must  take 
the  property  as  he  found  it,  and  was  entitled  to  no  compensation 
for  the  damage  which  it  might  have  suffered  in  the  interval ;  that 
what  was  actually  gone  he  could  not  claim  to  have  replaced ;  and 
especially  that  what  the  public  exchequer  (Jrscus)  had  alienated  was 
not  to  be  restored. 

That  as  to  such  alienations  the  principle  of  all  law,  whether  pri- 
vate, public,  or  international,  was  expressed  in  the  words  of  the 
Roman  Law,  "  JVbn  debet  quod  rit^  et  secundum  leges  ah  initio  actum 
est,  ex  alio  eventu  resKscitari.'''' 

It  was  impossible,  these  judges  observed,  to  consider  the  return 
of  tlie  Prince  as  a  continuation  of  his  former  government. 

He  had  not  been  constantly  in  arms  against  Xapoleon,  and  at  last 
successful,  by  force  of  arms,  in  recovering  his  domains.  He  had  been 
treated  by  the  peaces  of  Tilsit  and  Schonbrunn  as  politically  extinct, 
and  the  King  of  Westphalia  had  been  recognized  by  the  continental 
powers  as  Regent  of  Ilesse  Cassel. 

They  remarked  that  the  Prince's  own  tribunals  of  Hesse  Cassel 
had  pronounced  (June  27,  1818,)  that  those  subjects  of  the  King  of 
Westphalia  who  had  paid  to  him  or  his  exchequer  their  debts,  and 
received  due  discharges,  could  not  be  legally  called  upon  to  pay  a 
second  time;  and  they  thought  the  principle  of  that  decision,  as  well 
as  the  authorities  which  they  had  referred  to,  led  them  to  the  judi- 
cial conclusion  that  all  the  debts,  whether  the  whole  sum  had  l)een 
paid  or  not,  for  which  discharges  in  full  had  been  given  by  Xapo- 
leon, were  validly  and  effectually  paid ;  and  they,  therefore,  so  far, 
reversed  the  former  sentences,  leaving,  it  should  seem,  both  parties 
to  pay  their  costs. 


38i  EFFECTS    OF    WAE    AS   BETWEEN    EXE3IIES.         [PAKT  U. 


OCCUPATIOX  OF  NAPLES  BY  CHARLES  VIIL,  1495. 

(  PhiUimore's  International  Laic,  III.,  838.  ) 

May  citizens  legally  dLscharge  the  debts  which  they  owe  to  the  sovereign  by 
paying  the  amounts  to  the  temporary  conqueror  or  military  occupier  of  the  ter- 
ritory of  the  state 't 

In  the  year  1495,  Charles  the  Eighth  of  France  overran  Italy,  and 
replaced  for  a  moment  the  House  of  Anjou  upon  the  throne  of 
Naples.  During  his  brief  tenure  of  that  kingdom  the  French  king 
bestowed  upon  his  adherents  all  that  he  could  lay  hands  upon. 
Amongst  other  devices  for  enriching  the  Angevin  party,  that  of 
calling  in  debts  due  to  the  state  from  the  opposite  faction  was 
adopted.  Many  of  these  debtors  paid  honestly  the  full  amount  of 
their  debt.  Some  tried  to  drive  a  bargain  to  their  advantage,  pay- 
ing only  a  portion  of  their  debt,  and  obtaining  a  receipt  for  the 
whole.  Some  contrived  to  pay  nothing,  and  obtain  a  written  dis- 
cliarge  from  everything.  Four  months  afterwards,  when  the  French 
king,  with  the  Angevins,  was  driven  out,  and  Ferdinand,  with  the 
Arragonese,  was  restored,  the  question  as  to  the  validity  of  tliese 
payments  and  receipts  was  sharply  contested.  Among  other  jurists 
invoked  to  adjudicate  or  arbitrate  upon  it,  was  one  summce  mictori- 
tatis^  named  JlattJicriUS  de  Affiictis.  His  conclusions  on  this  im- 
portant subject  are  as  follows  : — 

'■'■  Prima  conchisio :  Quod  illi  debitores  dictorum  regtim  de  Arra- 
gonid,  qui  fuerunt  in  mora  solvendi  dlctis  regibus  pecuniam  debitam 
in  genere,  et  jussu  regis  Caroli  et  suorum  officialium  solverunt  ipsis 
donatariis,  quod  non  sunt  liherati,  et  tenentur  solvere  dictis  regibus, 
veris  creditoribus. 

"  Secxinda  conclusio  sit  ista,  quod  illi  debitores  qui  non  fuerunt  in 
mora  solvendi  dictis  creditoril)us,  sed  jussi  ab  officialibus  regis  Fran- 
ciae,  quod  solvant  illis  Gallis,  virtute  largitatis  regis,  et  ipsi  fecerunt, 
quidquid  eis  fuit  possible,  ut  non  solverent,  et  realiter  eis  solverunt 
propter  jussum  poenale,  qtiod  isti  sunt  liberati. 

"  Tertia  conclusio  sit  ista,  quod  si  debitor  fuit  in  mora,  sed  erat 
infra  tempus  purgandi  raoram,  et  infi-a  illud  tempus  sit  exactus  ab 
illis  Gallis  jussu  magistrattis  tunc  solvendo  Gallis  perinde  habeturac 
si  non  asset  in  mora,  et  sic  erit  liberatus. 

"  Qiiarta  conchisio  sit  ista,  quod  debitor,  qui  solvit  Gallis  illam 
pecuniam  debitam  regibus  de  Arragoniu  virtute  jussus  magistratCis, 


CHAr.  II.]  THE   "  MENTOR."  38D 

cui  non  potuit  resistere,  et  peenniam  illam  (lel)itani  post  diein  solu- 
tionis faciencUe  erat  solitum  quod  ipsi  debitores  penes  se  retineljan\ 
pro  expensis  occurrentibus  in  administratione  officii  nomine  regio,  si 
ipsam  pecuniani  Gallis  solverunt,  sunt  liberati,  etiani  qutjd  fueiiut  in 
mora. 

"  Quinta  condusio  sit  ista,  quod  illi  debitores,  qui  solutionem  pro- 
bant  per  confessionem  Gallorum  publicam  vel  privatani,  ita,  quod 
non  probant  veram  numerationem  pecunige  eis  factum,  non  sunt 
Uberati^  sed  debent  solvere  veris  creditoribus,  quantumcunque  osten- 
derint  dictum  jussum. 

"  Sexta  condusio,  quod  illi  debitores,  qui  se  concordaverunt,  quod 
si  non  ostendunt  veram  solutionem  in  totum  vel  in  partem,  non  sunt 
liber  at  L 

"  Exitus  rei  approbavit  istas  conclusiones." 


Section  39. — Termixatiox  of   War. 


THE  "MENTOR." 

High  Court  of   Admiralty. 

( 1  C.  Robinson,  179. ) 

Hostile  acts  committed  after  the  conclusion  of  peace  are  illegal ;  and  the 
injured  party  may  sustain  an  action  for  damages  against  the  wrongdoer.  But 
if  an  officer  commits  such  act  in  ignorance  of  the  ending  of  the  war,  his 
own  government  should  protect  him. 

The  following  is  an  extract  from  the  judgment  of  Sir  W.  Scott: — 
"The  circumstances  of  the  case,  as  far  as  it  is  necessary  to  state 
them,  are  these :  The  ship  being  American  property,  was  on  a  voy- 
age from  Havannah  to  Philadelphia,  in  1783 ;  off  the  Delaware  she 
was  pursued  by  His  Majesty's  ships,  the  Centurion  and  the  Vulture, 
then  cruising  off  that  river,  under  the  command  of  the  admiral  on 
that  station.  Admiral  Digby.  All  parties  were  in  complete  igno- 
rance of  the  cessation  of  hostilities ;  not  only  the  persons  on  board 
the  King's  ships,  but  the  Americans,  as  well  those  on  the  shore, 
as  those  on  board  the  vessel.  In  the  pursuit,  shots  were  fired  on 
both  sides,  and,  it  is  alleged  on  the  part  of  the  British,  that  the  ship 
was  set  on  fire  by  her  own  crew,  who  took  to  the  shore. 

"Now,  I  incline  to  assent  to  Dr.  Lawrence's  position,  that  if  an 
act  of  mischief  was  done  by  the  King's  officers,  though  through  igno- 
25 


38G  EFFECTS    OF    WAR    As    BETWEEN    ENEMIES.         [PART  n. 

ranee,  in  a  place  where  no  act  of  hostility  oug-lit  to  have  heen  exer- 
cised, it  does  not  necessarily  follow  that  mere  ignorance  of  tJial  fact 
would  protect  the  officers  from  civil  responsibility.  If  by  articles,  a 
place  or  district  was  put  under  the  King's  peace,  and  an  act  of  hos- 
tility Avas  afterwards  committed  therein,  the  injured  party  might 
have  a  right  to  resort  to  a  court  of  prize ;  to  show  that  he  had  been 
injured  Ijy  this  breach  of  the  peace,  and  was  entitled  to  compensa- 
tion ;  and  if  the  officer  acted  through  ignorance,  his  own  govern- 
ment nnist  protect  him :  for  it  is  the  duty  of  government,  if  they 
put  a  certain  district  within  the  King's  peace,  to  take  care  that  due 
notice  shall  be  given  to  those  persons  by  whose  conduct  that  peace 
is  to  be  maintained ;  and  if  no  such  notice  has  been  given,  nor  due 
diligence  used  to  give  it,  and  a  breach  of  the  peace  is  committed 
through  the  ignorance  of  those  persons,  they  are  to  be  borne  harm- 
less, at  the  expense  of  that  government  whose  duty  it  was  to  have 
given  that  notice."^ 


THE   "XYMPH." 

CoxsEiL  DEs  Prises,  1801. 

{Merlin;  Repertoire  de  Jurisprudence,  t.  25,  p.  131.) 

It  was  stipulated  by  the  Peace  of  Amiens,  between  England  and  France,  that 
two  months  sliould  be  allowed  for  the  news  of  the  close  of  the  war  to  reach  their 
respective  cruisers  in  the  West  Indies.  A  British  vessel  was  captured  before  the 
two  months  had  expired,  but  after  news  of  the  peace  had  reached  the  captors, 
coming,  however,  through  British  sources.     Tlie  ship  was  restored. 

The  XyrnpJi,  a  ]>i-itish  vessel,  was  captured  by  the  privateer 
Petite- lienoiionee  at  the  island  of  Guadeloupe  before  the  two  months 
granted  by  the  treaty  of  Amiens  for  these  seas  had  expired.  But 
the  Petite- Renommee  had  received  the  commission  and  sailed  from 
Guadeloupe  five  days  after  the  signing  of  the  treaty  of  peace  had 
been  conimunicated  by  the  English  governor  of  the  island  of  Dominica 
to  the  authorities  of  Guadeloupe,  and  acknowledged  by  the  latter. 
The  conseil  therefore  held  this  to  be  a  case  of  bad  faith  on  the  part 
of  the  captor;  and  although  information  of  peace  was  communicated 

'  This  case  had  been  in  the  courts  ten  or  more  years  previously,  but  no  records 
of  the  proceedings  were  produced.  On  this  account,  and  from  the  further  fact 
that  the  present  action  was  brouglit  against  the  admiral  of  the  station,  instead  of 
against  the  actual  wrongdoer,  the  court  refused  to  give  relief. 


CHAP.  II.]  THE   "MYMrn."  387 

by  the  enemy,  it  was  sufficient  to  stop  any  aggressive  acts  of  war 
until  the  truth  of  the  news  could  be  ascertained  officially.  Conse- 
quently the  Xi/n)])Ji  was  restored  with  damages. 

Conclusions  du  Commaissaire  du  Gouvernement.  31.  Collet-Des- 
cotils : — 

"  Une  chaloupe,  la  Petite- Henommee,  armoe  en  course,  partit  du 
port  dela  Liberie,  tie  de  la  Guadeloupe,  Ic  2  frimairc  anX,et,  le  9du 
mOnie  mois,  aborda  le  brick  Anglais,  la  Nijmbhe,  a  I'ancre  dans  la 
rade  de  Tile  de  Saint-Christophe,  coupa  son  cable  et  renleva. 

"Plusieurs  jours  auparavant,  les  preliminaires  de  la  paix  avaient 
etc  publics  dans  les  iles  Anglaises  de  ces  parages ;  le  capitaine  de  la 
fregate  Anglaise,  le  Tamer,  avait  envoy 6  un  parliamentaire  a  la 
Guadeloupe  pour  en  donner  lanouvelle,  quietait  confirmee  en  nieme 
temps  par  le  gouverneur  de  la  Dominique.  Tout  en  accusant  recep- 
tion de  ces  deux  communications  au  gouvernement  Anglais,  u  la  date 
du  24  brumaire,  le  mulatre  Pelage  qui  avait  usurpe  le  gouvernement 
militaire  de  la  Guadeloupe,  se  hiita  d'expedier  des  pouvoirs  a,  des 
corsaires,  qui  mirent  immediatement  a  la  mer,  dans  le  dessein  de 
profiter  de  la securite  des  Anglais.  Une  deces  commissions,  dc'livrce 
a  la  Petite-Iienommee,  portait  la  date  du  29  brumaire,  et  etait,  par 
consequent,  posterieure  de  cinq  jours  a  la  reponse  de  Pelage.  Dans 
sa  protestation  centre  la  capture,  le  capitaine  Anglais  declara  que  la 
Petite- Eeno7n7r)ee  ?ivait  surpris  son  navire  pendant  la  nuit;  qu'apres 
avoir  coupe  son  cable,  les  corsaires  etaient  monies  a  bord  ou  tout 
I'equipage  dormait,  et  avaient  use  de  leurs  amies,  quoiqu  'aucun  des 
Anglais  ne  fut  arme ;  qu'ils  avaient  pille  I'equipage,  ainsi  que  les 
marchandises  de  la  cargaison. 

"Par  decision  du  24  frimaire  an  X,  le  commissaire  de  la  marine  au 
port  de  la  Liberie,  assiste  du  controleur  de  la  marine  et  du  sous — 
commissaire  charge  de  I'inscription  maritime,  pronon9a  la  confiscation 
du  navire  et  du  chargement,  qui  furent  vendus,  et  dont  le  produit  fut 
verse  a  la  caisse  des  invalides  de  la  marine  jusqu'  a  ce  quMl  fut  statue 
definitivement. 

"  Sur  I'appel  porte  devant  les  Conseil  des  prises,  le  procureur  gen- 
eral conclut  a  Tannulation  de  la  prise.  Les  armateurs  avaient  allegue 
qu'on  ne  devait  reconnaitre  comme  nouvelles  de  la  paix  que  les  nou- 
velles  officielles,  c'est  a  dire  emanent  du  gouvernement ;  que,  sans 
cela,  on  serait  expose  a  devenir  victime  de  la  ruse  des  ennemis  et  de 
la  confiance  qu'on  aurait  euedans  une  fausse  nouvelle. 

"  C'est  se  tromper  etrangement,  dit  M.  Collet-Descotils,  commis- 
saire du  Gouvernement,  que  de  confondre  la  perfidie  avec  la  ruse ; 
et  ce  serait  une  perfidie  dont  il  n'est  point  d'exemple  dans  Thistoire 
des  nations  de  I'Europe,  qu'une  fausse  nouvelle  de   paix,  donnee 


388  EFFECTS    OF    WAR    AS   BETWEEN    ENEMIES.         [PAI;T  11 

officiellement  par  des  commandmants  militaires  d'une  nation  avec 
laquelle  le  premiere  serait  en  guerre. 

"Du  reste,  je  suis  loin  de  pretendre  que  Ton  soit  oblige  de  donner 
une  conllance  aveugle  aux  nouvelles  depaix  ainsi  transuiises,  et  que 
Ton  doive  negliger  les  mesures  de  surete  dans  les  lieux  ou  elles  par- 
viennent ;  inais  il  y  a  une  grande  difference  entre  se  tenir  sur  une 
sage  de'fensive,  jusqu' ace  qu'oii  ait  reyu  des  instructions  de  son 
l)ropre  gouvernement,  et  se  perniettre  des  actes  d'oppression,  lors  sur- 
lout  que  les  circonstances  rendent  plus  que  probable- la  nouvelle  de 
la  paix,  et  que  la  conduite  de  rennenii  est  telle  qu'elle  n'offre  point 
de  motifs  de  craindreaucune  surprise  de  sapart.  Recevoirde  notre 
ennemi  la  nouvelle  de  la  paix,  et,  i)ar  consequent,  recevoir  en  meme 
temps  Tassuranre  (pi'il  n'attaquera  plus  nos  vaisseaux,  exige  au 
inoins  de  notre  part  luie  suspension  d'hostilites  offensives  :  profiler 
de  la  seeurite  que  lui  inspire  la  communication  qu'il  nous  a  donnee, 
pour  faire  enlever,  soit  a  la  mer,  soit  dans  ses  ports,  ses  navires,  et 
sabrer  les  hommes  qui  les  montent,  est  un  acte  de  perfidie  et  de  de- 
loyaute  qui  ne  convient  qu'  a  des  pirates  et  qui  fletrirait  riioinieur  du 
nom  Franyais,  s'il  demeurait  impuni. 

"  Les  armateurs  du  corsaire  out  encore  pretendu  que  toute  prise 
faite  avant  Texpiration  des  delais  etait  valable,  puisque  Tart.  11  des 
preliminaires  fait  connaitre  que  ces  delais  out  ete  convenus  par  les 
puissances  contractantes,  pour  prevenir  les  plaintes  ou  les  reclama- 
tions. Rien  de  plus  errone  que  cette  opinion.  Les  prises  faites  dans 
les  delais  portes  par  I'art.  11  des  preliminaires  nepeuvent  done  etre 
jogees  valables,  qu'autant  que  les  batiments  capteurs  n'auraient  pas 
eu  une  connaissance  positive  de  la  paix.  Cette  verite,  conforme  aux 
principes  professes  paries  publicistes  que  j'ai  cites  dans  mes  conclu- 
sions sur  Taffaire  du  Porc/icr,  est  d'une  evidence  a  laquelle  on  ne 
peut  refuser  de  se  rendre. 

"Le  Coxseil  declare  nulle,  illegale,  et  contraireau  droit  des  gens, 
la  prise  faite  par  le  corsaire  P'ranyais  de  la  Guadeloupe,  la  Petite- 
JRenommte,  du  navire  Anglais  la  Xi/mphey  ^ 

1  The  similar  ease  of  the  Svnneherd  (le  Porcher),  Pistoge  et  Duvenlj-,  i.,  140, 
wasthat of anEnglish  vessel  captured  in  the  Indian  seas  by  a  Frencli  privateer, 
after  the  signing  of  the  treaty  of  Amiens,  hut  before  tlie  expiration  of  the  five 
montlis  allowed  for  the  news  of  the  peace  to  reach  those  seas. 

In  this  case  the  English  ship  had  been  fitted  out  as  a  privateer.  She  sailed  from 
Talcutta  after  the  news  of  the  peace  had  reached  that  place,  and  informed  the 
captor  of  that  fact.  It  was  contended  farther  by  the  claimant  that  the  captor  had 
n^ceived  notice  of  the  peace  from  a  Portuguese  vessel.  On  the  other  hand  it  was 
\\A(\  by  the  Conseil  des  Prises  that  no  sufficient  notice  of  peace  had  reached  the 
captor.  "  Ildemenrc  done  pour  constant  que  la  capture  e<t  legitimee.  d'uii  cote,  par 
le  fait  de  sou  anteriorite  aux  epoques  fixe  pour  la  restitution,  taut  par  les  prelim- 


CHAP.  II.J  THE   ''  THETIS."  389 


THE  "THETIS." 

CONSEIL    DES    PkISES,    1801. 
(Pi.stoye  et  Duverdi/,  I.,  148.) 

A  vessel  captured  between  the  dates  of  the  signing  of  tlie  iircliniinary  treaty  of 
Luneviile,  and  the  final  ratification  of  the  treaty,  restored,  on  the  ground  of  illegal 
captui'e  in  time  of  peace. 

"La  capture  de  la  T/tetig  avait  etc  faite  le  8  mars,  ISO  I,  viiigt- 
neuf  jours  aprus  la  signature  du  traite  de  Luneviile,  qui  est  du  9 
fevrier  precedent  (20  pluviose  an  IX);  mais  huit  jours  avant  que  ce 
traite  Mt  ratifle,  ce  qui  a  eu  lieu  le  16  mars,  1801.  Quant  a  la  publi- 
cation, elle  est  du  19  mars,  1801. 

"  Le  commissaire  du  gouvernement  a  conclu  de  ces  faits  qu'  a 
Fepoque  de  la  capture  nous  etions  en  paix  avec  la  puissance  sons  le 
pavilion  de  laquelle  voyageait  Za  TJnAis^  navire  autrichien. 

"Dire  que  le  traite  de  Luneviile  n'etait  pas  encore  ratiiie,  et  que, 
par  consequent,  il  ne  pouvait  pas  encore  avoir  son  execution,  c'est 
soutenir  une  proposition  vraiment  derisoire.  Sans  doute,  un  traite 
ne  devient  definitif  entre  deux  puissances  qu'apres  la  ratification ; 
raais  le  seul  bon  sens  nous  dit  que,  pourparvenir  ^  cette  ratification, 
chaque  puissance  respective  est  interessee  a  executer  sur-le-champ 
les  clauses  de  ce  traite,  sans  qu'  un  acte  de  cette  nature,  bien  plus 

inaires  que  par  le  traite  de  paix  ;  de  I'autre  par  le  defaut  de  connaissance  suflis- 
antes  de  la  cessation  de  toute  hostility  ;  qu'au  surplus,  ce  serait  etrangement  se 
nieprendre  sur  I'objet  de  la  course  et  les  principes  qui  la  dirigent,  quede  penser  que 
de  simples  avis  de  I'existence  de  la  paix,  donnes  vagueraent  en  mer  a  un  corsaiie, 
par  des  navigateurs  etrangers,  ou  sou  la  foi  d'une  gazette,  dussent,  en  pai-alysant 
ses  lettres  de  marque,  etre  pour  lui  le  signal  de  I'abandon  de  la  croisiere,  au  risque 
meme  de  toniber  entre  les  mains  de  I'ennemi  ;  qu'un  semblable  effet  n'appartient 
qu'a  I'ordre  qui  lui  serait  intimj,  au  nora  du  gouvernenient  dont  il  tient  rautoris- 
ation  formelle  de  capturer  ;  que  si  cependant  la  communication  de  la  paix  lui 
etait  faite  par  la  voie  de  I'ennemi,  en  vertu  d' Instructions  speciales  et  officielles 
dont  il  serait  porteur,  la  juste  deference  pour  les  actes  einanes  de  I'autorite  d'un 
souverain  determinerait  sans  doute  le  corsairc  a  respecter  cette  sauvegarde,  pourvu 
qu'eljp  fut  reciproipie  ;  njais  que  ce  serait  etre  pas  trop  liberal  h,  son  prejudice,  et 
lui  enlever  arbitrairement  le  benefice  des  reglements  etdes  traites,  que  de  restitu'^r 
une  prise  qu'il  a  faite  dans  les  terines  precis  de  son  droit,  et  iorsque  les  avis 
qu'il  aurait  rectus  ne  porteraient  point  avec  eux  le  cachet  de  rauthenticite, 
et  encore  le  gai^e  de  sa  securite  particuliere.'"  The  vessel  was  tlierefore  con 
demned  as  lawful  prize. 


S90  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [PAKT  II. 

serieiix  qirmie  simple  tit-ve,  lie  pi-oduirait  p;is  iiuanmoins  le  iiieme 
effet,  puisque  Feffet  de  la  treveest  de  suspendre  toutes  les  hostilite.s 
reciproques.  Or,  si  la  treve,  qui  n'est  qu'un  repos  momentane,  sus- 
l)end  les  hostilites,  coinineiit  pourrait — on  s'en  pennettre  apres  la 
sii^nature  d'liii  traite  (pii  nn  d'autre  but  que  de  reclamer  une  paix 
durable  ? 

"  A  mon  avis,  une  pareille  proposition  repugue  autant  a  la  politique 
qu'au  boil  sens.  Mais,  dira-t-on,  ee  traile  ne  pent  tout  au  plus  etre 
executoire  pour  les  sujets  des  puissances  contractantes  que  du  mo- 
nient  ou  il  leur  est  legalement  connu.  D'a))ord,  je  fais  observer  ici 
que  le  traite  dont  est  cas  aj^ant  une  existence  de  vingt-neuf  jours  a 
I'epoque  de  la  prise,  il  est  difficile  de  penser  que  le  corsaire  n'en  fut 
l^as  instruit.  En  second  lieu,  en  supposant  qu'il  n'en  fut  pas  reelle- 
ment  instruit  qu'en  resulterait-il  ?  Rien,  sinon  que  sa  bonne  foi  le 
niettrait  a  I'abri  des  domages-interets  a  I'eg'ard  du  capture ;  mais 
non  pas  que  la  capture  fut  valide,  puisqu'  une  capture  ne  peut  etre 
valide  que  quand  elle  est  faite  sur  un  ennemi.  Or,  nous  ne  pouvons 
pas  qualifier  d'ennemi  celui  avec  lequel  nous  avons  signe  un  traite  de 
paix:  s'il  en  etait  autrement,  on  adjugerait  a  un  corsaire  une  prhe 
que  le  gouvernement  serait  oblige  de  restituer. 

"  ]\Iais,  a-t-on  dit  encore,  la  cargaison  doit  au  inoins  encore  etre 
reputee  ennemie;  1'^  parce,  qu'elle  comportait  des  objets  de  contre- 
bande ;  2°  parce  qu'elle  etait  destinee  pour  des  ennemis. 

"  A  cela,  je  crois  devoir  faire  observer :  l**  que  pour  qu'une  car- 
gaison soit  rc'putee  de  contrebande,  il  faut  que  les  objets  prohibes 
surpassent  les  trois  quarts  de  cette  cargaison,  et  ici  50  caisses  de 
fusils  se  sont  trouvees  confondues  entre  120  caisses  de  vitriol  et  une 
quantito  considerable  de  bougies,  delivres  et  de  tables  de  pierre ;  2°  les 
amies  ne  sont  des  ol)jets  de  contrebande  que  lorsqu'elles  sont  des- 
tiiiees  pour  un  port  ennemi ;  et,  ^  V  instant  de  la  capture  de  /a  Thetis 
qui  se  rendait  en  Sicile,  un  armistice  etait  signe  entre  la  IJepublique 
et  le  roi  de  Naples.  II  est  vrai  que  cet  armistice  date  du  29  pluviose 
an  IX,  c'est-a-dire  treize  jours  aprcs  la  sortie  de  la  Thetis  de  Venise  ; 
en  sorte  que,  lorsque  cenavire  etait  en  armement,  nousetions  encore 
en  guerre  ouverte  avec  la  puissance  pour  les  Etats  de  laquelle  elle 
etait  destinee. 

"  3Iais,  outre  que  ce  serait  vrainicnt  une  question  que  celle  de 
savoir  si  on  doit  juger  une  prise  ou  d'apres  Tetat  de  choses  existant 
a  Tepoque  de  son  armement,  ou  d'apres  celui  existant  au  moment  de 
sa  capture  ;  d'un  autre  cute,  des  lorsque  les  caisses  de  fusils  trouvees 
a  bord  de  la  Thetis  ne  montaient  pas  aux  trois  quarts  de  sa  car- 
gaison, elles  ne  pouvaient  pas  en  faire  confisquer  la  totalite  de  la  car- 
gaison, et  seraient  tout  au  plus,  elles  seules,  sujettes  a  confiscation. 


CHAP.  II.]  THE    ''  rUOTECTUU.''  891 

"  Je  conclus  a  la  restitution  du  luivire  et  de  sa  cargaison. 
"  Du  7  ventose  an  IX. — Decision  du  Couseil  des  prises,  qui  invalide 
la  prise  de  la  I'hetis.'''' 


THE  "PROTECTOR." 

Supreme  Court  of  the  United  States,  1871. 
(13  Wallace,  700.) 

Tlie  beginning  and  termination  of  the  civil  war  in  the  United  States  in  refer- 
ence to  statutes  of  limitation,  is  to  be  determined  by  some  public  act  of  the  poUt- 
ical  department. 

The  war  did  not  begin  or  close  at  the  same  time  in  all  the  States. 

The  question  in  this  case  was  whether  the  suit  was  barred  by  the 
statute  of  limitations  in  Alabama.  As  the  statute  did  not  run  during 
the  period  of  the  war,  it  was  necessary  to  determine  precisely  the 
dates  of  beginning  and  end  of  the  war. 

Judgment, — Chase,  C.  J. : — 

"The  question,  in  the  present  case  is,  when  did  the  rebellion  begin 
and  end  ?  In  other  words,  what  space  of  time  must  be  considered 
as  excepted  from  the  operation  of  the  statute  of  limitations  by  the 
war  of  the  rebellion  ? 

"  Acts  of  hostility  by  the  insurgents  occurred  at  periods  so  various, 
and  of  such  different  degrees  of  importance,  and  in  parts  of  the 
country  so  remote  from  each  other,  both  at  the  commencement  and  the 
close  of  the  late  civil  war,  that  it  would  be  difficult,  if  not  impossible, 
to  say  on  what  precise  day  it  began  or  terminated.  It  is  necessary, 
therefore,  to  refer  to  some  public  act  of  the  political  departments  of 
the  government  to  fix  the  dates ;  and,  for  obvious  reasons,  those  of 
the  executive  department,  which  may  be,  and,  in  fact,  was,  at  the 
commencement  of  hostilities,  obliged  to  act  during  the  recess  of  Con- 
gress, must  be  taken. 

"  The  proclamation  of  intended  blockade  by  the  President  may, 
therefore,  be  assumed  as  marking  the  first  of  these  dates,  and  the 
proclamation  that  the  war  had  closed,  as  marking  the  second.  But 
the  war  did  not  begin  or  close  at  the  same  time  in  all  the  States. 
There  were  two  proclamations  of  intended  blockade  :  the  first  of  the 
19th  of  April,  1861  (12  Stat,  at  Large,  1258),  embracing  the  States 
of  South  Carolina,  Georgia,  Alabama,  Florida,  Mississippi,  Louisiana 
and  Texas;  the  second,  of  the  27th  of  April,  18G1  (12  Stat,  at  L., 
1259),  embracing  the  States  of  Virginia,  and  North  Carolina ;  and 


392  EFFECTS    OF    WAR    AS    BETWEEN    ENEMIES.         [PAKT   II. 

there  were  two  proclamations  declaring  that  the  war  had  closed ;  one 
issued  on  the  2d  of  April,  1866,  (14  Stat,  at  Large,  811),  emhracing 
the  States  of  Virginia,  North  Carolina,  South  Carolina,  (leorgia,  Flor- 
ida, Mississippi,  Tennessee,  Alabama,  Louisiana,  and  Arkansas,  and 
the  other  issued  on  the  'iOtli  of  August,  1866  (13  Stat,  at  Large, 
81-4),  embracing  the  State  of  Texas. 

"  In  the  absence  of  more  certain  criteria,  of  equall}^  general  appli- 
cation, we  nuist  take  the  dates  of  these  proclamations  as  ascertain- 
ing the  commencement  and  the  close  of  the  war  in  the  states  men- 
tioned in  them.  Applying  this  rule  to  the  case  before  us,  we  find 
that  the  war  began  in  Alabama  on  the  19th  of  April,  1861,  and  ended 
on  the  2d  of  April,  1886.  More  than  five  years,  therefore,  had 
elapsed  from  the  close  of  the  war  till  the  17th  of  May,  1871,  when 
this  appeal  was  brought.     The  motion  to  dismiss,  therefore,  must  be 

"  Granted."  ^ 

'  See  Broum  v.  Hiatts.  15  Wallace.  177. 

In  the  case  of  Philijjsv.  Hatch.  1  DiUon.  571  (1871),  the  United  States  Ch-cuit 
Court  for  Iowa  held  that  a  contract  entered  into  in  the  spring  of  1866  between  a 
resident  of  the  State  of  Iowa  and  a  resident  of  the  State  of  Texas,  was  void  as  a 
contract  between  enemies. 


CHAPTER  III. 
RELATIONS  BETWEEN  BELLIGERENTS  AND  NEUTRALS. 


Section  40. — Belligeeent  Capture  ix  Neutral  Waters. 


THE  "ANNA." 

High  Court  of  Admiralty,  1805. 

(5  C.  Robinson,  373.) 

The  capture  of  the  ship  of  an  enemy  m  neutral  waters  is  illegal;  and  the  ship 
will  be  restored  by  the  prize  court  of  the  captor. 

Territorial  waters  extend  three  miles  from  the  shore,  or  from  islands  near 
shore. 

This  was  the  case  of  a  ship  under  American  colors,  with  a  cargo  of 
logwood,  and  about  13,000  doUars  on  board,  bound  from  the  Spanish 
main  to  New  Orleans,  and  captured  by  the  Minerva  privateer  near 
the  mouth  of  the  river  Mississippi.  A  claim  was  given  under  tlie 
direction  of  the  American  Minister  for  the  ship  and  cargo,  as  taken 
witliin  the  territory  of  the  United  States,  at  the  distance  of  a  mile 
and  a  half  from  the  western  shore  of  tlie  principal  entrance  of  the 
Mississippi,  and  within  view  of  a  port  protected  by  a  gun,  and  where 
is  stationed  an  officer  of  the  United  States. 

The  following  is  an  extract  from  the  judgment  of  Sir  W.  Scott: — 
"  When  the  ship  was  brought  into  this  country  a  claim  was  given 
of  a  grave  nature,  alleging  a  violation  of  the  territory  of  the  United 
States  of  America.  This  great  leading  fact  has  very  properly  been 
made  a  matter  of  much  discussion,  and  charts  have  been  laid  before 
the  court  to  show  the  place  of  capture,  though  witli  different  repre- 
sentations from  the  adverse  parties.  The  cai)ture  was  made,  it 
seems,  at  the  mouth  of  the  river  Mississippi,  and,  as  it  is  contended 
in  the  claim,  within  tlie  boundaries  of  the  United  States.  We  all 
know  that  the  rule  of  law  on  this  sul)ject  is  '  terrse  dominium  finitur. 
ubi  finitur  armorum  vis,'  and  since  the  introduction  of  fire-arms 

393 


89-1:  i;i:lligei;ents  and  neutkals.  [part  ii. 

that  (li>;iance  has  usually  been  recognized  to  he  ahout  three  miles 
from  the  shore.  But  it  so  happens  in  this  case,  that  a  question 
arises  as  to  what  is  to  be  deemed  the  shore,  since  there  are  a  immber 
of  little  mud  islands  composed  of  earth  and  trees  drifted  down  by 
the  river,  which  form  a  kind  of  portico  to  the  main-land.  It  is  con- 
tended that  these  are  not  to  be  considered  as  any  part  of  the  terri- 
tory of  America,  that  they  are  a  sort  of  '  no  nuurs  land,'  not  of  con- 
sistency enough  to  support  the  purposes  of  life,  uninhabited,  and  re- 
sorted to,  onh',  for  shooting  and  taking  birds'  nests.  It  is  argued 
that  the  line  of  territory  is  to  be  taken  only  from  the  Balise,  which 
is  a  fort  raised  on  made  land  by  the  former  Spanish  possessors.  I 
am  of  a  different  opinion;  I  think  that  the  protection  of  territory  is 
to  be  reckoned  from  these  islands ;  and  that  they  are  the  natural 
appendages  of  the  coast  on  which  they  border,  and  fi'om  which,  in- 
deed, they  are  formed.  Their  elements  are  derived  immediately 
from  the  territory,  and  on  the  principle  of  alluvium  and  increment, 
on  which  so  much  is  to  be  found  in  the  books  of  law.  Quod  vis 
Jluminis  de  Pio prmdio  detraxerit,  and  vicinojjycsdio  attiderit^  palani 
tuion  remunet,  even  if  it  had  been  carried  over  to  an  adjoining  terri- 
tory. Consider  what  the  consequencewould.be  if  lands  of  this 
description  were  not  considered  as  appendant  to  the  main-land,  and 
as  comprised  within  the  bounds  of  territory. 

"If  they  do  not  belong  to  the  United  States  of  Ameiica,  any  other 
power  might  occupy  them  ;  they  might  be  embanked  and  fortified. 
What  a  thorn  would  this  be  in  the  side  of  Amei'ica !  It  is  physi- 
cally possible  at  least  that  they  might  be  so  occu})ied  by  Eur()[)ean 
nations,  .-uid  then  the  command  of  the  river  would  be  no  longer  in 
America,  but  in  such  settlements.  The  possibility  of  such  a  conse- 
quence is  enough  to  expose  the  fallacy  of  any  arguments  that  are 
addressed  to  show  that  these  islands  are  not  to  be  considered  as  part 
of  the  territory  of  America.  Whether  they  are  composed  of  earth 
or  solid  rock,  will  not  vary  the  right  of  dominion,  for  the  right  of 
dominion  does  not  depend  upon  the  texture  of  the  soil. 

"  I  am  of  opinion  that  the  right  of  territory  is  to  be  reckoned  from 
those  islands.  That  being  established,  it  is  not  denied  that  the 
actual  capture  took  place  within  the  distance  of  three  miles  from 
the  islands,  and  at  the  very  threshold  of  the  river.  But  it  is  said 
that  the  act  of  capture  is  to  be  carried  back  to  the  commencement 
of  the  pursuit,  and  that  if  a  contest  begins  before,  it  is  lawful  for  a 
belligerent  cruiser  to  follow,  and  to  seize  his  prize  within  the  terri- 
tory of  a  iii'Utral  state.  And  the  authority  of  Bynkershoek  is  cited 
on  this  point.  True  it  is,  that  that  great  man  does  intimate  an  opin- 
ion of  his  own  to  that  effect;  but  with  many  qualifications,  and 


CHAP.  111.]  THE    "ANNA."  395 

as  all  opiuidii,  which  ho  did  not  lind  to  liavo  heeii  ud()[>te(l  l)y 
any  other  writers.  I  confess  I  should  have  heen  inclined  to  have 
jioiic  along-  with  him,  to  this  extent,  that  if  a  cruiser,  which  had 
Ijct'ore  acted  in  a  manner  entirely  unexceptionable,  and  free  from 
all  violation  of  territory,  liad  summoned  a  vessel  to  submit  to  exam- 
ination and  search,  and  that  vessel  had  fled  to  such  places  as  these, 
enlirely  uninhabited,  and  the  cruiser  had  without  injury  or  annoy- 
ance to  any  person  whatever,  quietly  taken  possession  of  his  prey, 
it  AAould  be  stretcliing-  the  point  too  hardly  against  the  captor,  to 
say  tliat  on  this  account  only  it  should  be  held  an  illegal  capture. 
If  nothing-  objectionable  had  a[)i)eared  in  the  conduct  of  the  ca])tors 
before,  the  mere  following-  to  such  a  place  as  this  is,  would,  I  think, 
not  invalidate  a  seizure  otherwise  just  and  lawful. 

"  But  that  brings  me  to  a  part  of  the  case,  on  which  I  am  of  opin- 
ion that  the  privateer  has  laid  herself  open  to  great  reprehension. 
Captors  must  understand  that  they  are  not  to  station  themselves  in 
the  mouth  of  a  neutral  river,  for  the  purpose  of  exercising  the  rights 
of  war  from  that  river,  much  less  in  the  river  itself.  It  appears 
from  the  privateer's  own  log-book  that  this  vessel  has  done  both ; 
and  as  to  any  attempt  to  shelter  this  conduct  under  the  example  of 
King's  ships,  which  I  do  not  believe,  and  which,  if  true,  would  be 
no  justification  to  others,  captors  must,  I  say,  be  admonished,  that 
the  practice  is  altogether  indefensible,  and  that  if  King's  ships 
should  be  guilty  of  such  misconduct,  they  would  be  as  much  sub- 
ject to  censure  as  other  cruisers. 

"  It  is  unnecessary  to  go  over  all  the  entries  in  the  log.  The  cap- 
tors a})pear  by  their  own  description  to  have  been  standing  off  and  on^ 
obtaining  information  at  the  I^alise,  overhauling  vessels  in  their 
course  down  the  river,  and  making  the  river  as  much  sul:)servient  to 
the  purposes  of  war,  as  if  it  had  been  a  river  of  their  own  country. 
This  is  an  inconvenience  which  the  states  of  America  are  called  upon 
to  resist,  and  which  this  court  is  bound  on  every  principle  to  dis- 
courage and  correct. 

"With  respect  to  one  vessel,  it  appears  that  the  Bilboa,  under 
Spanish  colors,  and  an  undoubted  Spanish  ship,  had  been  captured 
and  carried  into  the  river ;  and  it  was  stated  in  an  affidavit  wdiich 
Avas  exhibited  to  account  for  the  absence  of  the  usual  witnesses  in 
that  case,  that  the  prisoners  liad  escaped.  The  cause  Avas  brought  on 
upon  the  evidence  of  the  releasing  witnesses  under  this  representa- 
tion. It  now  appears  by  an  entry  in  this  log,  '  that  the  jn-iaoners 
vjere  set  on  shore ;''  an  act  highly  unjustifiable,  in  its  own  nature, 
independent  of  the  deception  Avitli  which  it  has  been  accompanied. 
The  prisoners  are  the  King's  prisoners,  and  captors  are  particularly 


o9o  BELLIGKREXTS    AND    NEUTKALS.  [PART  II. 

enjoined  hj^  the  instructions  not  to  release  any  prisoners  belonging 
to  the  ships  of  the  enemy,  and  they  violate  their  duty  whenever  they 
do.  AVhen  I  advert  to  the  imposition  that  has  been  put  upon  the 
court  in  that  transaction,  how  can  I  trust  myself  to  any  representa- 
tion coming  from  the  same  persons.  Indeed,  I  think,  I  can  perceive 
strong  traits  of  bad  faith  running  throughout  the  whole  conduct  of 
the  captors  in  the  present  case.  In  answer  to  tiie  complaint  that 
has  been  made  against  the  captors  for  bringing  this  prize  to  Eng- 
land, it  was  said,  that  it  was  done  at  the  desire  of  the  master  of  the 
captured  vessel ;  though  in  the  affidavit  of  the  mastei',  \\hic-h  is  not 
contradicted,  it  is  sworn,  '  that  the  captors  offered  to  set  him  on 
shore,  but  that  he  refused  to  be  separated  from  his  cargo.' 

''  The  conduct  of  the  captors  has  on  all  points  been  highly  repre- 
hensible. Looking  to  all  the  circumstances  of  previous  misconduct, 
I  feel  myself  bound  to  pronounce,  that  there  has  been  a  violation  of 
territory,  and  that  as  to  the  question  of  property,  there  was  not  suf- 
ficient ground  of  seizure;  and  that  these  acts  of  misconduct  have 
been  further  aggravated,  by  bringing  the  vessel  to  England,  without 
any  necessity  that  can  justify  such  a  measure.  In  such  a  case  it 
would  be  falling  short  of  the  justice  due  to  the  violated  rights  of 
America,  and  to  the  individuals  who  have  sustained  injury  by  such 
misconduct,  if  I  did  not  follow  up  the  restitution  which  has  passed 
on  the  former  day,  with  a  decree  of  costs  and  damages." 


THE  "GEXERAL  ARMSTROXG." 

Louis  Xapoleox,    Aubitijator,  1851. 

(2  Wharton's  Digest,  604.) 

"Wliere  a  capture  has  been  made  in  neutral  waters,  claims  for  damages  by  the 
injured  belligerent  against  the  neutral  state  not  allowed,  if  the  captured  sliip 
resisted,  instead  of  asking  protection  of  the  neutral. 

"  The  destruction  of  the  American  armed  brig  General  Ariiistronf/ 
by  a  I^ritish  man-of-war,  in  the  harbor  of  Fayal,  in  1814,  gave  rise 
to  a  loiig-continuing  correspondence,  which  resulted,  in  is.jl,  in  an 
agreement  to  refer  the  claims  growing  out  of  it  to  the  '  arljitrament 
of  a  sovereign,  potentate,  or  chief  of  some  nation  in  amity  with  both 
the  high  contracting  parties.'  The  President  of  the  French  Repul)- 
lic  (afterwards  Xapoleon  TIT.)  was  selected  as  the  arbiter.  This 
decision  was  adverse  to  the  I'nited  States." 

The  following  is  a  translation  of  the  material  parts  of  the  decision  ; 


CHAP.  III.]  THE    "  GENERAL    ARMSTRONG."  397 

"  Considering  that  it  is  cleav,  in  fact,  tliat  tlio  United  States  were 
at  war  with  Her  Britannic  Majesty,  and  Her  Most  Faitliful  ^lajesty 
preserving-  her  neutrahty,  the  American  bi'ig  the  General  Arm,' 
stron;/^  connnanded  by  Captain  lleid,  legally  provided  with  lettei'S 
of  marque,  and  armed  for  privateerhig  purposes,  having  sailed  from 
the  port  of  Xew  York,  did,  on  the  26th  of  September,  1814,  cast 
anchor  in  tlie  port  of  Fayal,  one  of  the  Azores  Islands,  constituting 
part  of  Her  Most  Faithful  ^I;'.jesty's  dominions. 

"  That  it  is  equally  clear  that,  on  the  evening  of  the  same  day,  an 
English  squadron,  connnanded  by  Conunodore  Lloyd,  entered  the 
same  port ; 

"That  it  is  no  less  certain  that,  during  the  following  night,  re- 
gardless of  the  rights  of  sovereignty  and  neutrality  of  Her  Most 
Faithful  Majesty,  a  bloody  encounter  took  place  between  the 
Americans  and  the  English ;  and  that  on  the  following  day,  tlie 
27th  of  September,  one  of  the  vessels  belonging  to  the  English 
squadron  came  to  range  herself  near  the  American  privateer  for  the 
pur[)ose  of  cannonading  her;  that  this  demonstration,  accompanied 
by  the  act,  determined  Captain  Reid,  followed  by  his  crew,  to 
abandon  his  vessel  and  to  destroy  her  ; 

"  Considering  that  if  it  be  clear  that,  on  the  night  of  the  2Gth  of 
September,  some  English  long-boats,  commanded  by  Lieutenant 
Robert  Fausset,  of  the  British  navy,  approached  the  American 
brig,  the  General  Armstrong,  it  is  not  certain  that  the  men  who 
manned  the  boats  aforesaid  were  provided  with  arms  and  annnuni- 
tion  ; 

"  That  it  is  evident,  in  fact,  from  the  documents  which  have  been 
exhibited,  that  the  aforesaid  long-boats,  having  api)roaclied  the 
American  brig,  the  crew  of  the  latter,  after  having  hailed  them  and 
summoned  them  to  be  off,  immediately  fired  upon  them,  and  that 
some  men  were  killed  on  board  the  English  boats,  and  others  wounded 
— some  of  whom  mortally — without  any  attempt  having  been  made 
on  the  part  of  the  crew  of  the  boats  to  repel  at  once  force  by  force ; 

"Considering  that  the  report  of  the  governor  of  Fayal  proves 
that  the  American  captain  did  not  apply  to  the  Portuguese  govern- 
ment for  protection  until  blood  had  already  been  shed,  and,  when 
the  fire  had  ceased,  the  brig  General  Armstron</  came  to  anchor  un- 
der the  castle  at  a  distance  of  a  stone's-throw ;  that  the  said  gov- 
ernor states  that  it  was  only  then  that  he  was  informed  of  what  was 
passing  in  the  port ;  that  he  did,  on  several  occasions,  interpose 
with  Commodore  Lloyd  with  a  view  of  obtaining  a  cessation  of  hos- 
tilities, and  to  complain  of  the  violation  of  a  neutral  territory ; 

"  That  he    effectively    prevented    some    American    sailors,  who 


398  BELLIGERENTS    AND    NEUTRALS.  fl'ART  IL 

were  on  land,  from  embarking  on  board  the  American  brig  for  the 
purpose  of  prolonging  a  conflict  which  was  contrary  to  tlie  law  of 
nations  ; 

"  That  the  weakness  of  the  garrison  of  the  island  and  the  con- 
stant dismantling  of  the  forts,  by  the  removal  of  the  guns  which 
guarded  them,  rendered  all  armed  intervention  on  his  pait  impos- 
sible ; 

"Considering,  in  this  state  of  things,  that  Captain  Pieid,  not 
having  applied  from  the  beginning  for  the  intervention  of  the 
neutral  sovereign,  and  having  had  recourse  to  arms  in  order  to 
repel  an  unjust  aggression,  of  which  he  pretended  to  be  tlie  ol)ject, 
has  thus  failed  to  respect  the  neutrality  of  the  territory  of  the 
foreign  sovereign,  and  released  that  sovereign  of  the  obligation  in 
which  he  was,  to  afford  him  protection  by  any  other  means  than 
that  of  a  paciflc  intervention  , 

"From  which  it  follows  that  the  government  of  Iler  :\rost 
Faithful  Majesty  cannot  be  held  responsible  for  the  results 
of  the  collision  which  took  place  in  contempt  of  her  rights 
of  sovereignty,  in  violation  of  the  neutrality  of  her  territory,  and 
without  the  local  officers  or  lieutenants  having  been  required  in 
proper  time,  and  enabled  to  grant  aid  and  protection  to  those 
having  a  right  to  the  same  ; 

"  Therefore,  we  have  decided,  and  we  declare,  that  the  claim  pre- 
sented by  the  government  of  the  United  States  against  Her  :Most 
Faithful  Majesty  has  no  foundation,  and  that  no  indemnity  is  due 
by  Portugal  in  consequence  of  the  loss  of  tlie  American  brig,  the 
General  Armstrong^  armed  for  privateering  purposes." 


THE  "PEPvLE." 

CoNSEiL  DEs  Prises,  ax  YIH. 

(Pistoye  et  Diiverdy,  I..  100.) 

A  belligerent  capture  in  neutral  waters,  held  to  be  illegal,  whetlier  under  the 
guns  of  a  fort  or  on  tlie  undefended  coast :  and  the  captured  sliip  will  be  re- 
stored by  the  courts  (Frencli)  of  the  captor's  countr\-. 

Le  navire  Ja  Perle,  sous  pavilion  americain,  parti  de  Xew  York 
pour  .Saint-Sc'hastien,  sous  la  consignation  de  Jean  Holmiere,  fut 
pris  par  le  corsaire  V Efronte,  \q  30  nivose  an  VII.  Le  corsaire  la 
Lef/^sra,  voulant  concourir  a  cette  prise,  jeta  (piehpies  homnes  a  bord 
de  ce  navire,  qui  fut  conduit  le  meme  jour  au  port  de  Socoa. 


CHAP,  in.]  THK    "  PERLE."  899 

Le  capture  protendait  que  la  prise,  avait  etc  faite  sous  le  canfui  du 
fort  Saint-Sc'bastien,  et  il  se  plaignait  cle  cette  violalitjii  du  dmit  des 
gens. 

Le  eaptiMir  souteuait,  au  contraire,  que  le  droit  des  gens  n^vvait  pas 
ete  viole,  et  (pie  la  [)ris(;  n'avait  vlv  t'aite  (pTa  trois  licues  de  .Saiut- 
Sobastien. 

En  fait,  le  capture  avait  raison,  la  capture  avait  eu  lieu  dans  les 
eaux  espagnoles.  M.  Portalis,  conmiissaire  du  gouverneuicnl, 
deposa  les  conclusion.s  snivantes  : 

"La  capture  du  navire /«  Per^e  n'ayant  ete  faite  qu'a  une  denii- 
lieue  d'un  port  d'Espagne,  que  faut-il  })enser  de  la  validile  ou  de 
I'invalidite  de  cette  capture? 

"II  serait  inutile  de  discuter  les  divers  systenies  qui  out  ete 
publics  relativenient  aux  droits  de  cliaque  souverain  sur  les  niers  qui 
environnent  son  empire.  Ces  systenies  n'olfrent  que  des  questions 
d'ecole,  abandonnees  depuis  longtemps  a  la  dispute  et  a  la  discussion 
des  publicistes. 

"  Mais,  par  le  droit  conventionnel  des  puissances  maritimes  et  par 
la  coutume  generale,  il  est  reconnu  qu'un  corsaire  ne  pent  se  per- 
niettre  aucun  acte  d'hostilite,  ni  meme  aucune  visite,  contre  un 
navire  ennemi  ou  pretendu  tel,  si  ce  navire  n'est  a  une  distance  con- 
venable  du  territoire  de  toute  puissance  neutre.  Cette  distance  a  etc 
lixee  a  deux  lieues. 

"Plusieurs  auteurs  avaient  determine  la  distance  que  tout  arnia- 
teur  en  course  doit  respecter,  par  la  portee  du  canon ;  niais  on  a 
tres-judicieusement  observe  qu'il  est  plus  raisonnable  de  decider 
que  toute  prise  faite  a  inoiiis  de  deux  lieues  de  distance  des  cotes  du 
pays  neutre  est  contre  le  droit  des  gens  quoiqu'il  n'y  ait  sur  la  cote  ni 
forteresse  ni  canons ;  car  le  territoire  neutre  doit  etre  respecte,  inde- 
pendamment  de  la  force,  et  a  cause  de  lui-menie. 

"  II  faut  rendre  justice  a  nos  temps  modernes :  on  a  cherche  a 
diininuer  les  inaux  de  la  guerre.  Ce  sont  moins  les  jalousies  de  ju- 
ridiction  que  les-principes  d'une  philosopbie  plus  humaine  qui  ont 
fixe  le  droit  conventionnel  des  puissances  maritimes  sur  les  egards 
respectifs  qu'elles  se  doivent :  de  la,  elles  ont  cherche  a  transformer 
les  prerogatives  de  leur  souverainete  en  droit  d'asile  pour  les  navi- 
gateurs  ;  et,  sous  ce  point  de  vue,  les  rivalites  meme  de  pouvoir, 
avouees  par  I'liumanite,  ont  merite  d'etre  consacrees  comma  utiles 
au  bien  du  commerce  et  au  bonheur  uuiversel  des  nations. 

"  Des  doutes  s'elevant  encore  sur  la  fixation  du  territoire  de 
chaque  souverain,  quand  il  ne  s'agit  que  de  I'interet  particulier  de 
ses  Etats.  Ainsi,  le  voeu  des  publicistes  les  plus  estimables  est  dere- 
streindre  le  plus  que  Ton  pent  les  pretentions  de  territoire,  lorsque 


400  BELLIGERENTS    AND    NEUTItALS.  [PART  H. 

ces  pretentions  ne  sont  motivees  que  par  cles  idees  ambitieuses  ou 
fiscales :  mais  comrae,  dans  la  question  presente,  la  regie  des  deux 
lieues  suppose  moins  dans  les  souverains  le  desir  d'etendre  leur 
domination  que  celui  de  proteger  le  nialheur  et  de  lui  offrir  un 
asile  cette  regie  a  ete  applaudie  et  adoptee  conmie  un  vrai  bien  pub- 
lic. 

"  Dans  la  cause  presente,  M.  TAmbassadeur  d'Espagne  a  reclame. 
Le  ministre  des  relations  exterieures,  ecrivant  au  ministre  de  la  jus- 
tice, Ta  invite  a  rappeler  les  I'egles  internationales  a  tons  les  tri- 
bmiaux  qui  etaient  alors  charges  de  la  matiere  des  prises.  La  capture 
soumise  a  la  decision  da  Conseil  ne  pent  done  etre  autorisee,  si  elle 
a  ete  faite  a  moins  de  deux  lieues  de  distance  d'  un  port  ou  d'une  cote 
espagnole.  Or,  il  est  demontre,  en  point  de  fait,  que  la  capture  du 
navire  la  Perle  a  ete  faite  a  demi-lieue  du  port  de  Saint-Sebastien 
ou  de  celui  du  Passage.  Done,  elle  oft're  une  violation  manifeste  du 
droit  des  gens  et  de  la  foi  publique ;  et  ce  n'est  pas  vis-a-vis  d'un 
allie  fidele  que  Ton  pent  tolerer  une  pareille  violation,  aussi  con- 
damnable  aux  yeux  de  Thumanite  qu'a  ceux  de  la  politique. 

"  Je  conclus  a  ce  que  I'arrestation  et  la  prise  du  navire  la  Perle 
soient  declarees  invalides. 

"  Le  Coxseil  decide  que  la  prise  du  navire  la  Perle  et  de  son 
chargement,  faite  par  les  corsaires  francais  la  Legtre  et  VPJffronte, 
est  nulle  et  de  nul  effet." 


THE  "AXXE." 

Supreme  Court  of  the  L^^xited  States,  1818. 
(3TF^eafo/i,  435.) 

If  the  captured  ship  first  commences  hostilities  in  neutral  waters,  she  thereby 
forfeits  neutral  protection. 

A  capture  made  in  neutral  waters  is,  as  between  enemies,  deemed  to  all  intents 
and  purposes  a  legal  cajJture.  The  neutral  sovereign  can  alone  call  its  validity 
in  question. 

This  was  the  case  of  a  British  ship  captured  while  hing  at  anchor 
near  the  Spanish  part  of  the  island  of  St.  Domingo,  by  the  American 
privateer  Ultor. 

Extract  from  the  judgment  of  Story,  J. : — 

"  The  claim  of  the  Spanish  government  for  the  violation  of  its 
neutral  territory  being  thus  disposed  of,  it  is  next  to  be  considered 
whether  the  British  claimant  can  assert  any  title  founded  upon  that 
circumstance. 


CHAP.  111.]  Tin:    "ANNE."  401 

"By  the  return  of  peace,  the  chiiniant  hecmiio  rehal)ilitate(l  with 
the  capacity  to  sustain  a  suit  in  the  courts  of  this  country ;  an<I  the 
argument  is,  that  a  capture  made  in  a  neutral  teri'itory  is  void  ;  and, 
therefore,  the  title  by  capture  Iteiiii^-  invalid,  the  IJritish  owner  has 
a  right  to  restitution.  The  ditlicuity  of  tliis  argument  rests  in  the 
incorrectness  of  the  premises.  A  caiJture  made  wil  liiu  neuti'al  waters 
is,  as  between  enemies,  deemed,  to  all  intents  and  [)urposes,  rightful ; 
it  is  only  by  the  neutral  sovereign  that  its  legal  validity  can  be  called 
in  question;  and  as  to  him  and  him  only,  is  it  to  be  considered  void. 
The  enemy  has  no  rights  whatsoever,  and  if  the  neutral  sovereign 
omits  or  decUnes  to  interpose  a  claim,  the  property  is  condenniable, 
jure  helli,  to  the  captors.  This  is  the  clear  result  of  the  autliori- 
ties  ;  and  the  doctrine  rests  on  well  established  princi[)les  of  public 
law. 

"  There  is  one  other  point  in  the  case  which,  if  all  other  difficulties 
were  removed,  would  be  decisive  against  the  claimant.  It  is  a  fact., 
that  the  captured  ship  first  connnenced  hostilities  against  the  priva- 
teer. This  is  admitted  on  all  sitlcs;  and  it  is  no  excuse  to  assert 
that  it  was  done  under  a  mistake  of  the  national  character  of  the 
privateer,  even  if  this  were  entirely  made  out  in  the  evidence.  While 
the  ship  was  lying  in  neutral  waters,  she  was  bound  to  abstain  from 
all  hostilities,  except  in  self-defence.  The  privateer  had  an  equal 
title  with  herself  to  the  neutral  protection,  and  was  in  no  default  in 
approaching  the  coast  without  showing  her  national  character.  It 
was  a  violation  of  that  neutrality  which  the  captured  ship  was  bound 
to  observe,  to  commence  hostilities  for  any  purpose  in  these  waters ; 
for  no  vessel  coming  thither  was  bound  to  submit  to  search,  or  to 
account  to  her  for  her  conduct  or  character.  When,  therefore,  she 
commenced  hostilities,  she  forfeited  the  neutral  protection,  and  the 
capture  was  no  injury  for  which  any  redress  could  be  rightfully 
sought  from  the  neutral  sovereign. 

"  The  conclusion  from  all  these  views  of  the  case  is,  that  the  ship 
and  cargo  ought  to  be  condenmed  as  good  prize  of  war."  ^ 

1  In  the  case  of  the  Lilla,  2  Sprague,  177,  it  is  said  that,  "  it  is  undoubtedly 
true  that  no  private  person  can  rest  a  claim  for  the  restoration  of  prize  in  the 
courts  of  the  captor  on  the  ground  that  the  capture  was  made  in  neutral  waters, 
and  that  the  neutral  nation  whose  rights  have  been  infringed  alone  can  inter- 
pose."   See  also,  The  Sir  WiUiam  Peel,  o  Wall. ,  517  ;  The  Adela.  Wall. ,  266. 

In  the  case  of  the  British  ship  Grange,  captured  in  Delaware  Bay  by  a  French 
privateer  (1793),  it  was  held  by  Attorney-General  Randolph  (1  Op.  Att-Gen..  lH.) 
that  if  the  captured  ship  Avas  brought  within  the  jurisdiction  of  the  United 
States,  it  was  their  duty  as  neutrals  to  restore  her  to  the  owners.  To  the  same 
effect,  see  La  Estrella,  4  Wheaton,  298. 
26 


402  BELLIGEREXTS    AND   NEUTHALS.  [I'AilT  11. 


Section   41. — Equipment    of  Vessels    of  War    in  Xeltral  Ter- 
ritory. 


UNITED  STATES   NEUTRALITY   ACTS  OF   1794  AND    1818. 
(  U.  S.  Statutes  at  Large,  I.,  381,  and  Revised  Stat.,  ^  5289.) 

Act  of  June  5,  1794: 

Section  3. — "  If  any  person  shall  within  any  of  the  ports,  harbors, 
bays,  rivers,  or  other  waters  of  the  United  States,  fit  out  and  arm,  or 
attempt  to  fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or 
sliall  knowingly  be  concerned  in  the  furnishing,  fitting  out  or  arm- 
ing of  any  ship  or  vessel  with  intent  that  such  ship  or  vessel  shall 
be  employed  in  the  service  of  any  foreign  prince  or  state  [or  of  any 
colony,  district  or  people],  to  cruise  or  commit  hostilities  upon  the 
subjects,  citizens  or  property  of  another  foreign  prince  or  state  [or 
of  any  colon}',  district  or  people],  with  whom  the  United  States  are 
at  peace,  or  sliall  issue  or  deliver  a  commission  within  the  territory 
or  jurisdiction  of  the  United  States  for  any  ship  or  vessel  to  the  in- 
tent that  she  may  be  employed  as  aforesaid,  every  such  person  so 
offending  shall,  upon  conviction,  be  adjudged  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  and  imprisoned  at  the  discretion  of  the 
court  in  which  the  conviction  shall  be  had,  so  as  the  fine  to  be  im- 
posed shall  in  no  case  be  more  than  five  thousand  [ten  thousand  by 
the  act  of  1818]  dollars,  and  the  term  of  imprisonment  shall  not 
exceed  three  years,  and  every  such  ship  or  vessel  with  her  tackle,  ap- 
parel and  furniture  together  with  all  materials,  arms,  ammunition 
and  stores  which  may  have  been  procured  for  the  building  and  equip- 
ment thereof  shall  be  forfeited,  one-half  to  the  use  of  any  person  who 
shall  give  information  of  the  oft'ence,  and  the  other  half  to  the  use 
of  the  United  States. 

Section  7. — By  this  section  the  President  is  authorized  to  employ 
the  land  and  naval  forces  or  militia  to  execute  the  law. 

On  account  of  the  complaints  of  Spain  and  Portugal  (1815-17),  of 
infractions  of  neutrality  on  the  part  of  citizens  of  the  United  States 
in  the  war  which  those  states  were  then  waging  with  their  revolted 
South  American  colonies,  President  Madison  sent  a  special  message 
on  the  subject  to  Congress,  and  the  result  was  the  more  stringent 
act  of  April  20,  1818.    From  a  suggestion  of  the  Spanish  Minister, 


CHAP,  in.]        BRITISH    FOREIGN?   ENLISTMENT   ACTS.  403 

that  the  South  American  provinces  in  revolt,  and  not  recoc^nized  as 
independent,  might  not  be  inchided  in  the  word  "  State,"  the  words 
"colony,  district,  or  people,"  were  added,  as  given  in  brackets  above. 
The  new  clauses  of  the  act  of  1818  of  chief  importance  are  those 
authorizing  the  detention  of  vessels  on  suspicion,  and  requiring  the 
owners  to  give  bonds  on  clearance. 

Act  0/1818  (Revised  Statutes,  §  5289): 

Section  10. — "  The  owners  or  consignees  of  every  armed  vessel 
sailing  out  of  the  ports  of  the  United  States,  belonging  wliolly  or  in 
part  to  citizens  thereof,  shall,  before  clearing  out  the  same,  give  bond 
to  the  United  States,  with  sufficient  sureties,  in  doul)le  the  amount 
of  the  value  of  vessel  and  cargo  on  board,  including  armament,  con- 
ditioned that  the  vessel  shall  not  be  employed  by  such  owners  to 
cruise  or  commit  hostilities  against  the  subjects,  citizens,  or  property 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  people, 
with  whom  the  United  States  are  at  peace." 

Section  11. — "The  several  collectors  of  customs  shall  detain  any 
vessel  manifestly  built  for  warlike  purposes,  and  about  to  depart  the 
United  States,  the  cargo  of  which  principally  consists  of  arms  and 
munitions  of  war,  when  the  number  of  men  sliipped  on  lioard,  or 
other  circumstances,  render  it  probable  that  such  vessel  is  intended 
to  be  employed  by  the  owners  to  cruise  or  commit  hostilities  upon 
the  subjects,  citizens,  or  property  of  any  foreign  prince,  etc.,  witli 
whom  the  United  States  are  at  peace,  until  the  decision  of  the  Presi- 
dent is  had  thereon,  or  until  the  owner  gives  such  bond  and  security 
as  is  required  of  the  owners  of  armed  vessels  by  the  preceding 
section." 


BRITISH  FOREIGN  ENLISTMENT  ACT.^,  OF  1819  AND  1870. 
(59  Geo.  HI.,  c.  69,  and  33  and  U  Vict,  90.) 

Act  of  July  3,  1819.— Sectiox  7. 

"  If  any  person,  within  any  part  of  the  United  Kingdom,  or  in  any 
part  of  His  Majesty's  dominions  beyond  the  seas,  shall,  without  the 
leave  and  license  of  His  Majesty  for  that  purpose  first  had  and  ob- 
tained as  aforesaid,  equip,  furnish,  fit  out,  or  arm,  or  attempt  or  en- 
deavor to  equip,  furnish,  fit  out,  or  arm,  or  procure  to  be  equipped, 
furnished,  fitted  out,  or  armed,  or  shall  knowingly  aid,  assist,  or  be 
concerned  in  the  equipping,  furnishing,  fitting  out,  or  arming  of  any 
ship  or  vessel,  with  intent,  or  in  order  that  such  ship  or  vessel  shall 
be  employed  in  the  service  of  any  foreign  prince,  state,  or  potentate. 


404  BELLIGERENTS   AND    NEUTRALS.  [PART  H. 

or  of  any  foreijirn  colony,  iirovince,  or  part  of  an}^  province,  or  people ; 
or  if  any  person  or  persons  exercising  or  assuming  to  exercise  any 
powers  of  government  in  or  over  any  foreign  state,  colon}'-,  province, 
or  part  of  any  province  or  people,  as  a  transport  or  store-ship,  or 
with  intent  to  cruise  or  commit  hostilities  against  any  prince,  state, 
or  potentate,  or  against  the  persons  exercising  or  assuming  to  exer- 
cise the  powers  of  government  in  any  colony,  province,  or  part  of 
any  province  or  country,  or  against  the  inhabitants  of  any  foreigji 
colony,  province,  or  part  of  any  province  or  country,  with  whom 
His  Majesty  shall  not  then  be  at  war ;  or  shall,  within  the  United 
Kingdom,  or  any  of  His  Majesty's  dominions,  or  in  any  settlement, 
colony,  territory",  island,  or  place  belonging  or  sul)ject  to  His 
Majesty,  issue  or  deliver  any  commission  for  a  ship  or  vessel,  to  the 
intent  that  such  ship  or  vessel  shall  be  employed  as  aforesaid,  every 
such  person  so  offending  shall  be  deemed  guilty  of  a  misdemeanor, 
and  shall,  upon  conviction  thereof,  upon  any  information  or  indict- 
ment, be  punished  by  fine  and  iuiprisonment,  or  either  of  them,  at 
the  discretion  of  the  court  in  which  such  offender  sliall  be  convicted; 
and  every  such  ship  or  vessel,  with  the  tackle,  apparel,  and  furni- 
ture, together  with  all  the  materials,  arms,  ammunition,  and  stores, 
which  may  belong  to  or  be  on  board  of  any  such  ship  or  vessel, 
shall  be  forfeited,  and  it  shall  be  lawful  for  any  officer  of  His 
Majesty's  customs  or  excise,  or  any  oflBcer  of  His  Majesty's  navy, 
who  is  by  law  empowered  to  make  seizures,  for  any  forfeiture  in- 
curred under  any  of  the  laws  of  customs,  or  excise,  or  tlie  laws  of 
trade  and  navigation,  to  seize  such  sliips  and  vessels  aforesaid,  and 
in  such  places  and  in  such  manner  in  Avhich  the  officers  of  His 
3Iajesty's  customs  or  excise,  and  the  officers  of  His  ^lajesty's  navy 
are  empowered  respectively  to  make  seizures  under  the  laws  of  cus- 
toms and  excise,  or  under  tlie  laws  of  trade  and  navigation ;  and 
that  every  such  ship  and  vessel,  with  the  tackle,  apparel,  and  furni- 
ttire,  together  with  all  the  materials,  arms,  ammunition,  and  stores 
which  may  belong  to  or  be  on  board  of  such  ship,  or  vessel,  maj'^  be 
prosecuted  and  condemned  in  the  like  manner,  and  in  stich  courts  as 
ships  or  vessels  may  be  prosecuted  and  condennied  for  any  breach 
of  the  laws  made  for  the  protection  of  the  revenues  of  customs  and 
excise,  or  of  the  laws  of  trade  and  navigation. 

Section  8  imposes  penalties  for  the  augmentation  of  force  in  British 
ports. 

The  defect  in  this  act  was  in  the  procedure  under  it  rather  than 
in  the  intention  of  the  act  itself.  The  evidence  required  in  order  to 
arrest  or  detain  a  vessel  nmst  be  sufficient  to  satisfy  a  jury  of 
the  probable  breach  of  tiie  provisions  of  the  act ;  and  such  evidence 


CHAP.  III.]       THE   "CASSIUS"    OR    '' LES    .irMKAUX."  40') 

may  be  difficult  to  obtain.  The  local  ofUcers  were  wary  of  takiiiLC 
action  for  which  they  niight  be  hold  liable  in  damages.  The  act  of 
1870  removed  this  defect  of  procedure,  as  well  as  any  ambiguity 
there  might  be  in  the  act  itself.  The  question  of  the  breach  of  the 
act  is  not  to  be  determined  by  the  mere  "intent  "  of  the  builder. 

^lc«^/1870: 

Section  8. — "  If  any  person  within  Her  Majesty's  dominions,  etc., 
(1)  Builds  or  agrees  to  build,  or  causes  to  be  built,  any  ship  with 
intent  or  knowledge  or  having  reasonable  cause  to  believe  that  the 
same  shall  or  will  be  employed  in  the  military  or  naval  service  of 
any  foreign  State  at  war  with  any  friendly  State;  or 

'•(2)  Issues  or  delivers  any  commission  for  any  ship  with  intent 
or  knowledge,  etc.;  or 

"  (3)  Equips  any  ships  with  intent  or  knowledge,  etc. ;  or 

"  (4)  Despatches,  or  causes  or  allows  to  be  despatched,  any  ship 
with  intent  or  knowledge,  etc. 

"Such  persons  shall  be  deemed  to  have  committed  an  offence 
against  this  Act,  etc." 

Section  23  empowers  the  Secretary  of  State  on  "  reasonable  and 
probable  cause  for  believing"  that  a  ship  is  being  built  contrary  to 
this  Act,  to  issue  a  warrant  to  seize  and  search  such  ship  and  to  de- 
tain the  same  until  it  has  been  either  condemned  or  released  by 
process  of  law,  or  in  manner  hereinafter  mentioned. 

Section  24  provides  that  "  where  it  is  represented  to  any  local 
authority  "  that  there  is  reasonable  and  probable  cause  for  believing 
that  a  ship  has  been  or  is  being  built,  commissioned  or  ecpiipped 
contrary  to  this  Act,  it  shall  be  the  duty  of  such  local  authority  to 
detain  such  ship,  and  forthwith  to  communicate  the  fact  of  such 
detention  to  the  Secretary  of  State  or  chief  executive  authority,  who 
may  then  issue  a  warrant  for  detention,  or  release  the  vessel. 


THE  "CASSIUS"  OR  "  LES  JUMEAUX." 

1794_179G. 

{Z  Dallas,  121  ;  IVliartoii's  State  Trials,  93.) 

The  questions  in  respect  to  this  vessel  are  discussed  in  the  cases  of  United  States 
T.  Guiuet,  Wharton's  State  Trials.  93  ;  United  States  v.  Peters,  3  Dallas,  121  ;  and 
Ketland  v.  The  Cassius,  2  Dallas,  365. 

This  was  the  first  case  under  the  neutrality  act  of  1704.  Origiirally 
a  British  cutter,  this  vessel  came  into  the  hands  of  French  owners. 


406  BELLIGERENTS    AND    NEUTKALS.  [PART  IL 

who  broiig-Iit  her  to  Philadelphia  as  a  merchant  vessel,  though  carry- 
ing several  g-uns.  She  Avas  here  repaired,  and  Avas  being  fitted  out 
with  additional  guns  and  munitions  when  an  attempt  was  made  to 
arrest  her;  but  making  her  escape,  she  proceeded  to  San  Domingo — 
then  a  French  island— where  she  Avas  sold  to  the  French  govern- 
ment, February  4th,  1795,  her  armament  completed,  and  regularly 
commissioned  as  a  ship  of  Avar,  le  Cassias.  August  4,  1794,  she  came 
to  Philadelphia.  A  civil  suit  in  admiralty  for  damages  Avas  innne- 
diately  brought  against  her  by  the  owners  of  the  Willia^n  Lindsai/y 
a  vessel  that  the  Cass i us  had  captured  hi  ]\Iay  of  that  year.  On  ii 
writ  of  prohibition  from  the  Supreme  Court  the  vessel  Avas  released 
( IZ  S.  Y.  Peters)  ;  but  a  new  libel  Avas  immediately  filed  in  the  Cir- 
cuit Court  by  one  of  the  former  plaintiffs,  on  the  ground  of  illegal 
equipment  of  the  vessel  the  year  before.  At  the  October  term,  179G, 
the  question  arose,  whether  the  Circuit  Court  could  take  original 
cognizance  of  informations  for  forfeiture  under  the  Act  of  1794 ;  and 
the  court  dismissed  the  proceedings,  on  the  ground  that  such  pro- 
ceedings must  be  instituted  in  the  District  Court.  Xo  further  action 
was  taken  in  the  courts ;  and  it  will  thus  be  seen  that  the  question 
of  international  law  Avas  left  undecided.  The  French  minister,  M. 
Adet,  had  dismantled  the  ship  and  had  formally  abandoned  her  to 
the  government  of  the  United  States.  The  practical  result  was  that 
a  foreign  ship  of  war  was  libeled  and  detained  by  the  courts  of  the 
United  States,  and  the  Federal  Executive  seemed  unable  to  pre- 
vent it. 

In  the  United  States  v.  Gitinet^  the  accused  was  tried  and  con- 
demned to  fine  and  iaiprisonment  for  aiding  in  fitting  out  the  Cassias 
m  contravention  of  the  Act  of  1794. 


LA  "AMTSTAD  DE  RUES." 

Supreme  Court  of  the  United  States,  1820. 

(5  Wheat07i,  dSo.) 

A  civil  court  of  a  neutral  countiy  cannot  adjudicate  upon  the  validity  of  a 
capture  jure  belli,  as  between  the  captor  and  the  prize.  Its  only  function  is  to 
vindicate  the  offended  sovereignty  of  its  ovra  coimtry,  when  the  capture  was 
made  in  \-iolation  of  its  neutrality. 

"  A  Venezuelan  privateer  captured  a  Spanish  vessel  on  the  high 
seas,  and  sent  her  toA\^ards  Xcav  Orleans.  On  her  way,  she  Avas 
taken  possession  of  by  a  United  States  ship,  and  carried  into  that 


CHAP.  III.]  LA    '^VMISTAD    DE    HUES."  407 

port.  She  was  there  Hbelled  by  the  Spanish  owner  in  the  Court  of 
Admiralty  for  restitution,  on  the  ground  that  tlie  privateer  which 
captured  her  had  increased  its  force  within  tiie  United  States  before 
the  capture,  in  violation  of  the  neutrality  laws.  The  court  decreed 
restitution,  and  made  a  further  decree  condemning-  the  commander 
of  the  privateer  to  pay  damages  to  the  owner  of  the  vessel  for  loss 
occasioned  by  the  capture.  An  a[)peal  from  both  decrees  was  taken 
to  the  Supreme  Court.  That  court,  on  examhiation  of  the  proofs,  de- 
cided that  the  privateer  had  not  violated  our  neutrality  laws  by  the 
work  done  upon  her,  and  dismissed  the  libel.  This  was,  it  will  be  seen, 
only  a  decision  on  a  question  of  evidence  ;  and  by  that  decision  the 
whole  suit  failed.  But  Story,  J.,  in  delivering  the  opinion  of  the  court, 
thought  proper  to  go  beyond  what  was  necessary  for  terminating  the 
suit,  and  said,  that,  if  the  privateer  had  violated  our  neutrality  laws, 
so  as  to  have  warranted  the  decree  of  restitution  of  the  prize,  that 
would  not  have  justified  the  decree  for  damages.  In  explanation  of 
this  distinction,  the  learned  judge  shows  that  a  civil  court  of  a 
neutral  country  cannot  adjudicate  upon  the  validity  of  a  capture 
jure  belli,  as  between  the  captor  and  the  prize.  Its  only  function  is 
to  vindicate  the  offended  sovereignty  of  its  own  country.  If  a  prize 
is  taken  in  war,  in  violation  of  the  territory  or  other  rights  of  a 
neutral,  the  neutral  may  undo  the  act,  and  put  the  parties  in  statu 
quo  ante,  by  releasing  the  prize  and  restoring  it  to  the  owner.  And 
the  owner  of  the  prize  may  demand  that.  The  neutral  does  this 
solely  to  vindicate  its  own  sovereignty,  and  not  with  any  regard  to 
the  validity  or  invalidity  of  the  capture  as  between  the  parties.  Into 
that,  it  need  not  and  cannot  inquire.  The  fact  that  a  capture  is 
made  in  violation  of  the  rights  of  a  neutral  sovereign,  is  no  legal  ob- 
jection to  the  capture,  as  between  the  parties.  Consequently,  the 
neutral  court  cannot  award  damages  to  the  owner  of  the  captured 
vessel,  as  for  a  capture  made  without  probable  cause,  or  as  otherwise 
illegal.  The  neutral  nation  should  fairly  execute  its  own  laws, 
and  give  no  asylum  to  the  property  unjustly  captured.  It  is  bound, 
therefore,  to  restore  the  property,  if  found  within  its  own  ports. 
Beyond  this,  it  is  not  bound  to  interpose  between  the  belligerents.'' 
(Quoted  from  Dana's  Wheaton,  p.  552,  note.)  ^ 

'  In  the  case  of  Tlie  Nereijda,  8  Wheaton,  108  (1823),  a  Spanish  ship  of  war 
was  captured  by  the  privateer  Irresistible,  which  was  fitted  out,  owned,  and 
commanded  by  American  citizens,  cruising  imder  a  commission  from  Artigas,  as 
chief  of  the  Oriental  RepubHc  of  Rio  de  la  Plata.  The  prize  was  taken  to  jMar- 
garita,  an  island  of  Venezuela,  and  there  condemned  as  prize.  Venezuela  being 
an  ally  of  the  Oriental  Republic.  She  was  there  commissioned  as  a  Venezuelan 
privateer,  and  came  to  Baltimore.     Here  she  was  libelled  on  behalf  of  the  King 


■108  BELLIGEUEXTS    A>D    XEUTKALS.  [PAET  II. 


THE  "  SAXTTSSIMA  TRIXIDAD." 

Supreme  Court  of  the  U>ited  States,  1822. 
(  7  U'heaton,  283. ) 

Held,  tliat  neutral  citizens  may  send  armed  vessels  to  belligerent  ports  for 
sale,  provided  it  be  done  as  a  bona  Jide  commercial  transaction,  a  ship  iutliis 
situation  being  considered  as  merely  an  article  of  conti'aband  of  war. 

The  augmentation  of  the  foi'ceof  a  belligerent  cruiser,  in  neutral  territor}-,  is 
illegal  :  and  will  entail  the  restoration  of  a  prize  made  by  such  vessel,  if  brought 
within  the  jurisdiction  of  the  offended  neutral. 

This  was  a  libel  filed  by  the  consul  of  Spain,  in  the  district  court 
of  Virginia,  in  April,  1817,  against  eighty-nine  bales  of  cochineal, 
two  bales  of  jalap,  and  one  box  of  vanilla,  originally  constituting 
part  of  the  cargoes  of  the  Spanish  ships  Santissima  Tn'nhlad  'AXidi 
St.  Aiider,  and  alleged  to  be  unlawfully  and  piratically  taken  out  of 
those  vessels  on  the  high  seas  by  a  squadron  consisting  of  two  armed 
vessels  called  the  Independencla  del  Sud  and  the  Altrarida,  and 
manned  and  commanded  by  persons  assuming  themselves  to  be 
citizens  of  the  Ignited  Provinces  of  the  Kio  de  la  Plata.  The  libel 
was  filed,  in  behalf  of  the  original  Spanish  owners,  by  Don  Pablo 
Chacon,  consul  of  his  Catholic  Majesty  for  the  port  of  Norfolk ; 
and  as  amended,  it  insisted  upon  restitution,  principally  for  three 
reasons : 

(1)  That  the  commanders  of  the  capturing  vessels,  the  Indepen- 
dencia  and  the  AltravUla,  were  native  citizens  of  the  United  States, 
and  were  prohibited  by  our  treaty  with  Spain  of  1795,  from  taking 
commissions  to  cruise  against  that  power.  (2)  That  the  said  capt- 
uring vessels  were  owned  in  the  United  States,  and  were  originally 

of  Spain  on  the  ground  that  the  Irresistible  had  been  illegalh'  fitted  out  in  an 
American  port.  A  claim  was  set  up  by  one  Francesc-he,  who  alleged  that  he  had 
bought  her  at  the  prize  sale.  The  Supreme  Court  (Story,  J. ,  giving  the  opinion) 
held  that  this  purcliase  was  not  proved,  and  that  she  was  still  in  the  hands  and 
ownership  of  the  owners  of  the  Irresistible  ;  that  their  title  was  not  improved  by 
the  condemnation,  if  vaUd  otherwise  ;  and  restored  her  to  the  King  of  Spain. 
(Dana's  Wheaton,  5.55,  note.) 

Other  early  cases  in  the  United  States  courts  on  this  question  are  :  The  Betsey, 
Bee,  67  ;  The  Brotliers,  Bee,  76  ;  The  Nancy,  Bee,  73  ;  llie  Sloop  Betsey,  3  Dalla.s, 
6;  Tlie  Maydalena,  1196  (Talbot  v.  Jansen,^  Dallas,  133);  The  Alfred.  \1! 96.-^ 
Dallas,  307  ;  The  Plujebe  Ann,  1796.  3  Dallas,  319  ;  The  Invincible,  1816. 1  Wheaton. 
238  ;  Bello  Corranes,  1821.  6  Wheaton.  152  ;  Gran  Para,  1822.  7  Wheaton.  471  ; 
Arrogante  Barceloms,  1822,  7  Wheaton,  496  ;  Tlie  Funny,  1824,  9  Wheaton,  659. 


CHAP,  irr.]  THE    "SAXTIRSniA   TIUXIDAD."  400 

equipped,  fitted  out,  armed  and  nianued  in  tiie  United  States,  con- 
trary to  law.  (8)  That  their  I'orce  and  armament  had  been  illegally 
augmented  within  the  United  States. 

The  district  court,  upon  the  hearing  of  the  cause,  decreed  restitu- 
tion to  the  original  Spanish  owners.  That  sentence  was  alftrmed  in 
the  circuit  court,  and  from  the  decree  of  the  latter  the  cause  was 
brought  by  appeal  to  this  court. 

Judgment, — Stouy,  J.  : — 

"  Upon  the  argument  at  the  bar  several  questions  have  arisen, 
which  have  been  deliberately  considered  by  the  court;  and  its  judg- 
ment will  now  be  pronounced.  The  first  in  the  order,  in  which  we 
think  it  most  convenient  to  consider  the  cause,  is,  whethei"  tlie  Iii<hpen- 
ilencia  is  in  point  of  fact  a  public  ship,  belonging  to  the  govei'innent  of 
Buenos  Ayres.  The  history  of  this  vessel,  so  far  as  is  necessary  for 
the  disposal  of  this  })oint,  is  briefly  this :  She  was  originally  built 
and  equipped  at  IJaltimore  as  a  privateer  during  the  late  war  with 
Great  Britain,  and  was  then  rigged  as  a  schooner,  and  called  the 
Mammoth^  and  cruised  against  the  enemy.  After  the  jicace  she  was 
rigged  as  a  brig,  and  sold  by  her  original  owners.  In  January,  181G, 
she  was  loaded  with  a  cargo  of  munitions  of  war,  by  her  new  own- 
ers, who  are  inhabitants  of  Baltimore,  and  being  armed  with  twelve 
guns,  constituting  a  part  of  her  original  armament,  she  was  de- 
spatched from  that  port,  under  the  connnand  of  the  claimant,  on  a 
voyage,  ostensibly  to  the  Northwest  Coast,  but  in  reality  to  Buenos 
Ayres.  By  the  written  instructions  given  to  the  supercargo  on 
this  voyage,  he  was  authorized  to  sell  the  vessel  to  the  government 
of  Buenos  Ayres,  if  he  could  ol)tain  a  suitable  price.  She  duly 
arrived  at  Ikienos  Ayres,  having  exercised  no  act  of  hostility,  but 
sailed  under  the  protection  of  the  American  flag,  during  the  voy- 
age. At  Buenos  Ayres  the  vessel  was  sold  to  Captain  Chaytor  and 
two  other  persons ;  and  soon  afterwards  she  assumed  the  flag  and 
character  of  a  public  ship,  and  was  understood  by  the  crew  to  have 
been  sold  to  the  government  of  Buenos  Ayres ;  and  Captain  Chay- 
tor made  known  these  facts  to  the  crew,  and  asserted  that  he  had 
become  a  citizen  of  Buenos  Ayres  ;  and  had  received  a  commission 
to  command  the  vessel  as  a  national  ship ;  and  invited  the  crew  to 
enlist  in  the  service;  and  the  greater  part  of  them  accordingly 
enlisted.  P'lom  this  period,  which  was  in  May,  181G,  the  public 
functionaries  of  our  own  and  other  foreign  governments  at  that  port, 
considered  the  vessel  as  a  public  shi[)  of  war,  and  such <  was  her 
avowed  character  and  reputation.  No  bill  of  sale  of  the  vessel  to 
the  government  of  Buenos  Ayres  is  produced,  and  a  question  has 
been  made  princii)ally  from  this  defect  in  the  evidence,  whether  hei 


410  BELLIGERENTS    AND    KErTUALS;.  [PAT.T  IL 

cluiracter  as  a  pnljlic  ship  is  established.  It  is  not  understood  that 
any  doubt  is  expi'essed  as  to  the  genuineness  of  Captain  Cliaytor's 
coniniission,  nor  as  to  the  competency  of  the  other  proofs  in  the 
cause  introduced,  to  corroborate  it.  We  are  of  opinion  that  tliey  do. 
In  general  the  coniniission  of  a  public  ship,  signed  by  the  pi'oper 
authorities  of  the  nation  to  which  she  belongs,  is  complete  proof  of 
her  national  character.  .V  bill  of  sale  is  not  necessary  to  be  pro- 
duced. Nor  will  the  courts  of  a  foreign  country  inquire  into  the 
means  by  which  the  title  to  the  property  has  been  acquired.  It 
would  be  to  exert  the  right  of  examining  into  the  validity  of  the  acts 
of  the  foreign  sovereign,  and  to  sit  hi  judgment  upon  them  in  cases 
where  he  has  not  conceded  the  jurisdiction,  and  where  it  would  be 
inconsistent  with  his  own  supremacy.  The  commission,  therefore, 
of  a  public  ship,  when  duly  authenticated,  so  far  at  least  as  foreign 
courts  are  concerned,  imports  absolute  verity,  and  the  title  is  not 
examinable.  The  property  must  be  taken  to  be  duly  acquired,  and. 
cannot  be  controverted.  This  has  been  the  settled  practice  between 
nations  ;  and  it  is  a  rule  founded  in  public  convenience  and  policy, 
and  cannot  be  broken  in  upon,  without  endangering  the  peace  and 
repose,  as  well  of  neutral  as  of  belligerent  sovereigns.  The  com- 
mission in  the  present  case  is  not  expressed  in  the  most  unequivocal 
terms ;  but  its  fair  purport  and  interpretation  must  be  deemed  to 
apply  to  a  public  ship  of  the  government.  If  we  add  to  this  the 
corroborative  testimony  of  our  own  and  the  British  consul  at  Buenos 
Ayres,  as  well  as  that  of  private  citizens,  to  the  notoriety  of  her 
claim  of  a  public  character ;  and  her  admission  into  our  own  ports 
as  a  public  ship,  with  the  immunities  and  privileges  belonging  to 
such  a  ship,  with  the  express  approbation  of  our  own  government, 
it  does  not  seem  too  much  to  assert,  whatever  may  be  the  private 
suspicion  of  a  lurking  American  interest,  that  she  must  be  judicially 
held  to  be  a  public  ship  of  the  country  whose  commission  she 
bears,     *    *    * 

"  The  next  question  growing  out  of  this  record,  is  whether  the 
pioperty  in  controversy  was  captured  in  violation  of  our  neutrality, 
so  that  restitution  ought,  by  the  law  of  nations,  to  be  decreed  to  the 
libellants.  Two  grounds  are  relied  upon  to  justify  restitution  : 
F'irst^  that  the  Indepeiidencia  and  AUramda  were  originally  equii)ped, 
armed,  and  manned  as  vessels  of  war  in  our  ports.  Secpndh/^  that 
there  was  an  illegal  augmentation  of  the  force  of  the  Independtuchi 
within  our  ports.  Are  these  grounds,  or  either  of  them,  sustained 
by  the  evidence  ?    *     *     * 

"  The  question  as  to  the  original  illegal  armament  and  outfit  of 
the  Independencia  may  be  dismissed    in  a  few  words.     It  is  appar- 


tUIAP.  III.]  THE    *' SANTISSIMA    TRINIDAD."  411 

ent,  that  thoug-h  C4nipi)e(l  as  a  vessel  of  war,  she  was  sent  to  "Ruenos 
Ayres  on  a  eoiniiiereial  adventure,  contraband,  indeed,  but  in  no  shape 
viohiting-  our  laws  on  our  naiional  neutrality.  If  captured  by  a 
Spanis]i  ship  of  war  during  the  voyage  she  would  have  been  justly 
condennied  as  good  prize,  and  for  being  engaged  in  a  traffic  })rohib- 
ited  by  the  law  of  nations.  But  there  is  nothing-  in  our  laws,  or  in 
the  law  of  nations,  that  forbids  our  citizens  fi'oni  sending  armed  ves- 
sels, as  well  as  munitions  of  war,  to  foreign  ports  for  sale.  It  is  a 
commercial  adventure  which  no  nation  is  bound  to  prohil)it;  and 
which  only  exposes  the  persons  engaged  in  it  to  the  penalty  of  con- 
fiscation. Supposing,  therefore,  the  voyage  to  have  been  for  com- 
mercial purposes,  and  the  sale  at  Buenos  Ayres  to  have  been  a  hona 
fide  sale  (and  there  is  nothing  in  the  evidence  before  us  to  contradict 
it),  thei'e  is  no  pretence  to  say,  that  the  original  outfit  on  the  voyage 
was  illegal,  or  that  a  capture  made  after  the  sale  was,  for  that 
cause  alone,  invalid. 

"  The  most  material  consideration  is  as  to  the  augmentation  of  her 
force  in  the  United  States,  at  a  subsequent  period.     *    *     * 

"  The  Court  is,  therefore,  driven  to  the  conclusion,  that  there  Avas 
an  illegal  augmentation  of  the  force  of  the  Indepemlencia  in  our 
ports  by  a  substantial  increase  of  her  crew ;  and  this  renders  it 
wholly  unnecessary  to  enter  into  an  investigation  of  the  question, 
whether  there  was  not  also  an  illegal  increase  of  her  armament. 
>»  *  *  This  view  of  the  question  renders  it  unnecessary  to  con- 
sider another  w^hich  has  been  discussed  at  the  bar  respecting  what 
is  denominated  the  right  of  expatriation.     *     *     * 

"And  here  Ave  are  met  by  an  argument  on  behalf  of  the  claimant, 
that  the  augmentation  of  the  force  of  the  Independencia  within  our 
ports,  is  not  an  infraction  of  the  law  of  nations,  or  a  violation  of  our 
neutrality ;  and  that  so  far  as  it  stands  prohibited  by  our  municipal 
laws  the  penalties  are  personal,  and  do  not  reach  the  case  of  restitu- 
tion of  captures  made  in  the  cruise,  during  Avhich  such  augmenta- 
tion has  taken  place.  It  has  never  been  held  by  this  court  that  an 
augmentation  of  force  or  illegal  outfit  affected  any  captures  made 
after  the  original  cruise  was  terminated.  By  analogy  to  other  cases 
of  violations  of  public  law  the  offence  mny  well  be  deemed  to  be  de- 
posited at  the  termination  of  the  voyage,  and  not  to  affect  future 
transactions.  But  as  to  captures  made  during  the  same  cruise,  the 
doctrine  of  this  court  has  long  established  that  such  illegal  augmen- 
tation is  a  violation  of  the  law  of  nations,  as  well  as  of  our  own 
municipal  law's,  and  as  a  violation  of  our  neutrality,  by  analogy  to 
other  cases,  it  infects  the  captures  subsequently  made  with  the  char- 
acter of  torts,  and  justifies  and  requires  a  restitution  to  the  partiei 


412  BELLIGERENTS    AND    NEUTRALS.  [1"A1;T  IL 

Avho  liave  been  i:ijure(l  by  such  miscoiuluct.  It  does  not  lie  in  the 
mouth  of  wrongdoers  to  set  up  a  title  derived  from  a  violation  of  our 
neutrality. 

"  'J'he  cases  in  which  this  doctrine  has  been  recognized  and  applied, 
have  been  cited  at  the  bar,  and  aresoimmerous  and  so  uniform,  that 
it  would  be  a  waste  of  time  to  discuss  them,  or  to  examine  the  rea- 
soning by  which  they  are  supported.  ^lore  especially  as  no  inclina- 
tion exists  on  the  part  of  the  court  to  question  the  soundness  of  these 
decisions.  If,  indeed,  the  question  were  entirely  new,  it  would  de- 
serve very  grave  consideration,  whether  a  claim  founded  on  a  viola- 
tion of  our  neutral  jurisdiction  could  be  asserted  by  private  persons, 
or  in  any  other  manner  than  a  direct  intervention  of  the  government 
itself.  In  the  case  of  a  capture  made  within  a  neutral  territorial 
jurisdiction,  it  is  well  settled,  that  as  between  the  captors  and  the 
captured,  the  question  can  never  be  litigated.  It  can  arise  only  upon 
a  claim  of  the  neutral  sovereign  asserted  in  his  own  courts  or  the 
courts  of  the  power  having  cognizance  of  the  capture  itself  for  the 
purposes  of  prize.  And  l)y  analogy  to  this  course  of  proceeding,  the 
interposition  of  our  own  government  might  seem  fit  to  have  been  re- 
quired before  cognizance  of  the  wrong  could  be  taken  by  oui-  courts. 
But  the  practice  from  the  beginning  in  this  class  of  causes,  a  period 
of  nearl}^  30  years,  has  been  uniformly  the  other  way ;  and  it  is 
now  too  late  to  disturb  it.  If  anj'  inconvenience  should  grow  out  of 
it,  from  reasons  of  state  policy  or  executive  discretion,  it  is  compe- 
tent for  Congress  to  apply  at  its  pleasure  the  proper  remedy.  *   *   * 

"  Upon  the  whole,  it  is  the  opinion  of  the  court  that  the  decree  of 
the  circuit  court  be  affirmed,  Avith  costs." 


UXITED  STATES  r.  QFIXCY. 
•     Supreme  Coikt  of  the  Uxitkd  States,  1832. 
(6  Peters,  445.) 

Held,  that,  if  a  vessel  be  fitted  out  in  the  United  States  witli  the  intent  that  she 
shall  engage  in  hostilities  agaiast  a  friendly  nation,  it  is  an  infringement  of  the 
neutrality  act  of  1818,  and  subjects  the  owner  to  the  penalties  attached  to  that 
act. 

But  if  the  intention  was  to  send  the  vessel  to  the  West  Indies  in  search  of  funds 
with  which  to  complete  her  armament,  with  no  present  intention  of  preying 
upon  the  commerce  of  a  friendly  state,  he  was  not  guilty. 

So,  if  there  was  no  fixed  intention,  but  a  mere  wish  to  fit  her  out,  etc. .  it  would 
not  be  illegal. 

3Ir.  Justice  Thompson  delivered  the  opinion  of  the  court : — 


CUAI'.   III.]  UNITED    STATES    V.  QUINCY.  413 

''  This  case  conies  up  from  tlie  Circuit  Court  of  the  United  States 
for  the  ^Maryhind  district,  on  a  division  of  opinion  of  the  judges,  upon 
certain  instructions  prayed  for  to  the  jury. 

"The  indictment  upon  which  the  defendant  was  put  upon  his 
trial,  contains  a  number  of  counts,  to  which  the  testimony  did  not 
apply,  and  which  are  not  now  drawn  in  question.  The  twelfth  and 
thirteenth  are  the  only  counts  to  which  the  evidence  applied  ;  and 
the  offence  charged  in  each  of  these  is  substantially  the  same ;  to 
wil,  that  the  said  Jolin  D.  Quincy,  on  the  31st  day  of  Deceml)er, 
1828,  at  the  district  of  Maryland,  etc.,  with  force  and  arms,  was 
knowingly  concerned  in  the  fitting  out  of  a  certain  vessel  called  the 
Bolnuii\  otherwise  called  Xa.s  Dumas  Argentinas,  Avitli  intent  that 
sucli  vessel  should  be  employed  in  the  service  of  a  foreign  people, 
that  is  to  say,  in  the  service  of  the  United  Provinces  of  IJio  de  la 
Plata,  to  commit  hostilities  against  the  subjects  of  a  foreign  prince ; 
that  is  to  say,  against  the  subjects  of  his  imperial  majesty,  the  con- 
stitutional emperor  and  perpetual  defender  of  Brazil,  with  whom 
the  United  States  then  were,  and  still  are  at  peace,  against  the  foi-m 
of  the  act  of  Congress  in  such  case  made  and  provided. 

"  The  act  of  Congress  under  which  the  indictment  was  found,  0th 
Vol.,  Laws  U.  S.,  321,  sect.  3,  declares,  'that  if  any  person  shall, 
within  the  limits  of  the  United  States,  fit  out  and  arm,  or  attempt 
to  fit  out  and  arm,  or  procure  to  be  fitted  out  and  armed,  or  shall 
knowingly  be  concerned  in  the  furnishing,  fitting  out,  or  arming  of 
any  ship  or  vessel,  with  intent  that  such  ship  or  vessel  shall  be  em- 
ployed in  the  service  of  any  foreign  prince  or  state,  or  of  any  colony, 
district  or  people,  to  cruise  or  commit  hostilities  against  the  sub- 
jects, citizens  or  property  of  any  foreign  prince  or  state,  or  of  any 
colony,  district  or  people  with  whom  the  United  States  are  at  peace, 
etc.,  every  person  so  offending,  shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  more  than  ten  thousand  dollars, 
and  imprisoned  not  more  than  three  years,  etc' 

"  The  testimony  being  closed,  several  prayers,  both  on  the  part  of 
the  United  States  and  of  the  defendant,  were  presented  to  the  court 
for  their  opinion  and  direction  to  the  jury  ;  and  upon  which  the 
opinions  of  the  judges  were  opposed,  and  which  will  now  be  noticed 
in  the  order  in  which  they  were  made. 

"  On  the  part  of  the  defendant  the  court  was  requested  to  charge 
the  jury,  that  if  they  believe  that  when  the  BoUcar  left  Baltimore, 
and  when  she  arrived  at  St.  Thomas,  and  during  the  voyage  from 
Baltimore  to  St.  Thomas,  she  Avas  not  armed,  or  at  all  prepared  for 
war.  or  in  a  condition  to  commit  hostilities,  the  verdict  must  be  for 
the  defendant. 


414  liELLIGERENTS   AND    NEUTKALS.  [lAKT  II. 

"The  prayer  on  the  part  of  the  United  States  upon  this  part  of 
the  case,  was,  in  suhstance,  that  if  the  jury  find  from  the  evidence 
that  the  defendant  was,  witliin  the  district  of  Maryland,  knowingly 
concerned  in  the  fitting  out  the  privateer  Bolivar^  with  intent  that 
she  should  be  employed  in  the  manner  alleged  in  the  indictment, 
then  the  defendant  was  guilty  of  the  offence  charged  against  him, 
although  the  jury  should  find  that  the  equiimients  of  the  said  pri- 
vateer were  not  complete  within  the  United  States,  and  tliat  the 
cruise  did  not  actually  commence  until  men  were  recruited,  and 
further  equipments  were  made  at  the  island  of  St.  Thomas  in  the 
"West  Indies. 

"The  instruction  which  ought  to  he  given  to  the  jury  under 
these  prayers  involves  the  construction  of  the  act  of  Congress, 
touching  the  extent  to  which  the  preparation  of  the  vessel  for  cruis- 
ing or  committing  hostilities  must  he  carried  before  she  leaves  the 
limits  of  the  United  States,  in  order  to  bring  the  case  within  the  act. 

"  On  the  part  of  the  defendant  it  is  cordended,  that  the  vessel 
must  1)6  fitted  out  and  armed,  if  not  complete,  so  far  at  least  as  to 
be  prepared  for  war,  or  in  a  condition  to  commit  hostilities. 

"  We  do  not  think  this  is  the  true  construction  of  the  act.  It  has 
been  argued  that,  although  the  offence  created  by  the  act  is  a  mis- 
demeanor, and  there  cannot,  legally  speaking,  be  principal  and  ac- 
cessory, yet  the  act  evidently  contemplates  two  distinct  classes  of 
offenders.  The  principal  actors,  who  are  directly  engaged  in  jd-e- 
paring  the  vessel,  and  another  class,  who,  though  not  tiie  chief 
actors,  are  in  some  way  concerned  in  the  preparation. 

"  The  act,  in  this  respect,  may  not  be  drawn  with  veiy  great  per- 
spicuity. But  should  the  view"  taken  of  it  by  the  defendant's  coun- 
sel be  deemed  correct  (which,  however,  we  do  not  admit),  it  is  not 
perceived  how  it  can  affect  the  present  case.  For  tlie  indictment, 
according  to  this  construction,  places  the  defendant  in  the  second- 
ary class  of  offenders.  He  is  only  charged  with  being  kiiowingly 
concerned  in  the  fitting  out  the  vessel,  witli  intent  that  she  should 
be  employed,  etc. 

"To  bring  him  Avithin  the  words  of  the  act,  it  is  not  necessary  to 
chai'ge  liim  with  being  concerned  in  fitting  out  and  arming.  The 
words  of  the  act  are,  fitting  out  or  arming.  Either  will  constitute 
the  offence.  But  it  is  said  such  fitting  out  must  be  of  a  vessel 
armed  and  in  a  condition  to  commit  hostilities,  otherwise  the  minor 
actor  may  be  guilty  wiien  the  greater  would  not.  For,  as  to  the  lat- 
ter, there  nuist  be  a  fitting  out  and  arming  in  order  to  bring  him 
within  the  law.  If  this  construction  of  the  act  be  well  founded,  the 
indictment  ought  to  charge,  that  the  defendant  was  concerned  in 


c.'iAi*.  III.]  uxitp:d  states  v.  QTINCV.  11.") 

fitting  out  the  lio/irar,  hclug  a  vessel  fitted  out  and  armedy  etc.  liut 
this,  we  apiirehend,  is  not  recjuired.  It  would  be  going  beyond  tlic 
l)l;iiii  meaning  of  the  words  used  in  definhig  the  otl'ence.  It  is  suf- 
ficient if  the  indictment  charges  tlie  otl'ence  in  the  woi-ds  of  the  act ; 
and  it  cannot  be  necessary  to  prove  what  is  not  cliarged.  It  is  true, 
that,  with  respect  to  those  who  have  been  denominated  at  the  l»ar 
the  chief  actors,  the  law  would  seem  to  make  it  necessary  that  tliey 
Bhould  be  charged  witli  fitting  out  and  arming.  These  words  may 
require  that  both  should  concur;  and  tlie  vessel  be  put  in  a  con- 
dition to  commit  hostilities,  in  order  to  bring  her  within  the  law. 
But  an  attempt  to  fit  out  and  arm  is  made  an  offence.  This  is  cer- 
tainly doing  something  short  of  a  complete  fitting  out  and  arming. 
To  attempt  to  do  an  act  does  not,  either  in  law  or  in  common  par- 
lance, imply  a  completion  of  the  act,  or  any  definite  progress  to- 
wards it.  Any  effort  or  endeavor  to  effect  it  will  satisfy  the  terms 
of  the  law. 

"This  varied  phraseology  in  the  law  was  probably  employed  with 
a  view  to  embrace  all  persons  of  every  description  who  might  be  en- 
gaged, directly  or  indirectly  in  preparing  vessels  with  intent  that 
they  should  be  employed  in  committing  hostilities  against  any 
powers  with  whom  the  United  States  were  at  peace.  Different  de- 
grees of  criminality  will  necessarily  attach  to  persons  thus  engaged. 
Hence  the  great  latitude  given  to  the  courts  in  affixing  the  punish- 
ment, viz.,  a  fine  not  more  than  ten  thousand  dollars  and  imprison- 
ment not  more  than  three  years. 

"  We  are,  accordingly,  of  opinion,  that  it  is  not  necessary  that  the 
jury  should  believe  or  find  that  the  Bolivai\  when  she  left  Balti-- 
more,  and  when  she  arrived  at  St.  Thomas,  and  during  the  voyage 
from  Baltimore  to  St.  Thomas,  was  armed,  or  in  a  condition  to  com- 
mit hostilities,  in  order  to  find  the  defendant  guilty  of  the  offence 
charged  in  the  indictment. 

"The  first  instruction,  therefore,  prayed  on  the  part  of  the  de- 
fendant, must  be  denied,  and  that  on  the  part  of  the  United  States 
given. 

"  The  second  and  third  instructions  asked  on  the  part  of  the  de- 
fendant, were : 

"  That  if  the  jury  believe  that,  when  the  Bolivar  was  fitted  and 
equipped  at  Baltimore,  the  owner  and  equipper  intended  to  go  to 
the  West  Indies  in  search  of  funds,  with  which  to  arm  and  equip 
the  said  vessel  and  had  no  2y}'esent  intention  of  using  or  enqiloying 
the  said  vessel  as  a  pi-ivateer,  but  intended,  when  he  equipped  her,  to 
go  to  the  West  Indies,  to  endeavor  to  raise  funds  to  prepare  her  for 
a  cruise ;  then  the  defendant  is  not  guilty. 


41u  BELLIGERENTS    AND    NEUTRALS.  [PAltT  IL 

"  Or  if  the  jury  Lelieve  that,  Avhen  the  Bolivar  was  equipped  at 
Baltimore,  and  when  slie  left  the  United  States,  the  equipper  Jiad 
no  fixed  inttntlon  to  onploy  her  as  a  privateer,  but  had  a  wish  so 
to  employ  her,  the  fultilment  of  wiiich  wish  drix'nded  on  his  ability 
to  ol)tain  funds  in  the  West  Indies,  for  the  purpose  of  arming  and 
preparing  her  for  war;  then  the  defendant  is  not  g'uilty. 

"  We  think  these  instructions  ought  to  be  given.  The  offence 
consists  principally  in  the  intention  with  which  the  preparations 
were  made.  These  preparations,  according  to  the  very  terms  of  the 
act,  must  be  made  within  the  limits  of  the  United  States ;  and  it  is 
equally  necessary  that  the  intention  with  respect  to  the  employ- 
ment of  the  vessel  should  be  formed  before  she  leaves  the  United 
States.  And  this  must  be  a  fixed  intention;  not  conditional  or  con- 
tingent, depending  on  some  future  arrangements.  This  intention  is 
a  question  belonging  exclusively  to  the  jury  to  decide.  It  is  the 
material  point  on  which  the  legality  or  criminality  of  the  act  must 
turn  ;  and  decides  whether  the  adventure  is  of  a  commercial  or 
warlike  character. 

"  The  law  does  not  prohibit  armed  vessels  belonging  to  citizens  of 
the  United  States  from  sailing  out  of  our  ports  :  it  only  requires 
the  owners  to  give  security  (as  was  done  in  the  present  case)  that 
such  vessels  shall  not  be  employed  b}'-  them  to  commit  hostilities 
against  foreign  powers  at  peace  with  the  United  States.  The  col- 
lectors are  not  authorized  to  detain  vessels,  although  manifestly 
built  for  warlike  purposes,  and  about  to  depart  from  the  United 
States,  unless  circumstances  shall  render  it  probable  that  such  vessels 
are  intended  to  be  employed  by  the  owners  to  commit  hostilities 
against  some  foreign  power,  at  peace  with  the  United  States. 

"All  the  latitude,  therefore,  necessary  for  commercial  purposes,  is 
given  to  our  citizens ;  and  they  are  restrained  only  from  such  acts 
as  are  calculated  to  involve  the  country  in  Avar. 

"  The  second  and  third  instructions,  asked  on  the  part  of  the 
United  States,  ought  also  to  be  given.  For,  if  the  jury  shall  find 
(as  the  instructions  assume)  that,  the  defendant  was  knowingly 
concerned  in  fitting  out  the  Bolivar  within  the  United  States,  with 
the  intent  that  she  should  be  employed  as  set  forth  in  the  indict- 
ment, that  intention  being  defeated  by  what  might  afterwards  take 
place  in  the  West  Indies,  would  not  purge  the  offence,  which  was 
previously  consummated.  It  is  not  necessary  that  the  design  or  in- 
tention should  be  carried  into  execution  in  order  to  constitute  the 
offence. 

"  The  last  instruction  or  opinion  asked  on  the  part  of  the  de- 
fendant, was : 


CHAI'.  irr.]  UNITED    .STATES    V.  (,)rrN'CY.  417 

"That,  accordinf?  to  tlie  evidence  in  tlie  cause,  the  United  Pi-ov- 
inces  of  Uio  de  la  Pkxta  is,  and  was,  at  the  time  of  the  offence  al- 
leged in  the  indictment,  a  government  acknowledged  by  the  United 
States,  and  tlius  was  a  state,  and  not  i\  pnoph,  witliin  the  meaning 
of  the  act  of  Congress,  under  which  the  defendant  is  indicted  ;  the 
word  people  in  that  act  being  intended  to  describe  communities 
under  an  existing  government,  not  recognized  by  the  United 
States ;  and  that  the  indictment  cannot  l)e  supposed  on  this  evi- 
dence. 

"  The  indictment  cliarges  tliat  the  defendant  was  concerned  in  fit- 
ting out  the  £oliccn\  with  intent  that  slie  should  be  employed  in  tlie 
service  of  a  foreign  peo2)le  ;  that  is  to  say,  in  the  service  of  the 
United  Provinces  of  Kio  de  la  Plata.  It  was  in  evidence,  that  the 
United  Provinces  of  Rio  de  la  Plata  had  been  regularly  acknowl- 
edged as  an  independent  nation  by  the  executive  department  of  the 
government  of  the  United  States,  before  the  year  18'27.  And,  there- 
fore, it  is  argued  that  the  word  people  is  not  properly  applicable  to 
that  nation  or  power, 

"  The  objection  is  one  purel}^  technical,  and  we  think  not  well- 
founded.  The  word  people^  as  here  used,  is  merely  descriptive  of 
the  power  in  whose  service  the  vessel  was  intended  to  be  employed; 
and  it  is  one  of  the  denominations  applied  by  the  act  of  Congress  to 
a  foreign  power.  The  words  are,  '  in  the  service  of  any  foreign 
prince  or  state ;  or  of  any  colony,  district  or  people?  The  applica- 
tion of  the  word  people  is  rendered  sufficiently  certain  l)y  what  fol- 
lows under  the  videlicet,  '  that  is  to  say,  the  United  Provinces  of 
Rio  de  la  Plata.'  This  particularizes  that  which  by  the  word  p>eople 
is  left  too  general.  The  descriptions  are  no  way  repugnant  or  in- 
consistent with  each  other,  and  may  well  stand  together.  That 
which  comes  under  the  videlicet,  only  serves  to  explain  what  is 
doubtful  and  obscure  in  the  word  people. 

"  This  instruction  must  therefore  be  denied,  and  the  one  asked  on 
the  part  of  the  United  States,  viz.,  that  the  indictment  is  sufficient 
in  law,  must  be  given. 

"  These  answers  must  accordingly  be  certified  to  the  circuit  court." 
27 


4i8  BELLIGEIIENTS    AND   ^•EUTKALS-  TpaUT  U. 


THE  "METEOR." 

IT.  S.  Circuit  Court  for  So.  New  York,  1866. 

(3  Whartoii.s  Digest.  561.) 

A  vessel  may  be  fitted  out  in  the  United  States  for  war,  whether  with  arma- 
ment, or  without,  and  sent  to  a  belligerent  port  in  search  of  a  market. 

The  case  of  the  Jleteor,  which  has  been  the  subject  of  mucli 
discussion  in  this  reUition  is  reported  in  brief  in  1  American  Law, 
liCV.,  401.  Accordmg  to  this  report,  the  JItieor  was  built  in  the 
United  States  in  1865,  during  the  war  tlien  pending  between  Chile 
and  Spain,  and  sold  to  the  Cliilean  government,  without  armament, 
and  tlien,  it  was  alleged,  commissioned,  when  in  the  United  States, 
as  a  Chilean  privateer.  She  ^^■as  libeled  in  New  York  and  seized 
January  23,  1866  ;  and  on  the  hearing  before  Judge  Betts  it  was 
maintained  by  the  claimant  to  "  be  no  ott'eiise  (under  the  act  of  18ls) 
to  issue  a  commission  within  tlie  United  States  for  a  vessel  fitted  and 
equipped  to  cruise  or  commit  hostilities,  and  intended  to  cruise  and 
commit  hostilities,  so  long  as  such  vessel  was  not  armed  at  the  time, 
and  was  not  intended  to  be  armed  within  the  United  States,  although 
it  could  be  shown  that  a  clear  intent  existed,  on  the  part  of  the  per- 
son issuing  or  delivering  the  commission,  that  the  vessel  should 
receive  her  armament  the  moment  she  should  be  beyond  the  jurisdic- 
tion of  the  United  States."'  It  was  said,  however,  by  Judge  Betts. 
that  "the  court  cannot  give  any  such  construction  to  the  statute. 
Such  a  construction  was  repudiated  by  the  supreme  court.  *  *  * 
The  J/efeor,  although  not  completeh^  fitted  out  for  military  opera- 
tions, was  a  vessel-of-war,  and  not  a  vessel  of  commerce.  She  has 
in  no  manner  been  altered  from  a  vessel-of-war  so  as  to  fit  her  to  be 
only  a  merchantman  and  so  as  to  unfit  her  to  be  a  vessel-of-war.  It 
needed  only  that  she  should  reach  a  point  beyond  the  jurisdiction  of 
the  United  States,  and  there  have  her  armament  and  ammunition 
put  on  board  of  her,  to  become  an  armed  cruiser  of  the  Chilean  gov- 
ernment against  the  government  of  Spain.  *  *  *  To  say  that 
the  neutrality  laws  of  the  United  States  have  never  prohibited  the 
sale  of  a  vessel-of-war  as  an  article  of  commerce,  is  merely  to  say 
that  they  have  not  prohibited  the  fitting  out  and  arming,  or  the 
attempting  to  fit  out  and  arm,  or  the  furnishing  or  fitting  out  or 
arming,  of  a  vessel,  within  the  limits  of  the  United  States,  provided 


CHAP.  III.]  THE   "METEOR."  419 

the  unlawful  nnd  prohil>ite(l  intent  did  not  exist.""  The  court  i-elied 
as  uuthority  on  Dana's  AVheaton,  502,  563,  note  215,  where  it  is  said 
tliat  "an  American  merchant  may  build  and  fully  arm  a  vessel  and 
suppl}'^  her  with  .stores,  and  offer  her  for  sale  in  our  own  market.  If 
he  does  any  acts,  as  an  agent  or  servant  of  a  belligerent,  or  in  pur- 
suance of  an  arrangement  or  understanding  with  a  belligerent,  that 
she  shall  be  employed  in  hostilities  when  sold,  he  is  guilty.  lie 
may,  without  violating  our  law,  send  out  such  a  vessel,  so  equipi)ed, 
under  the  flag  and  paj^ers  of  his  own  country,  with  no  more  force  of 
crew  than  is  suitable  for  navigation,  with  no  right  to  resist  search 
or  seizure,  and  to  take  the  chances  of  capture  as  contraband  mer- 
chandise, of  blockade,  and  of  a  market  in  a  belligerent  port.  In 
such  case  the  extent  and  character  of  the  equii)ment  is  as  innnaterial 
as  in  the  other  class  of  cases.  The  intent  is  all.  The  act  is  open  to 
great  suspicions  and  abuse,  and  the  line  may  often  be  scarcely  trace- 
able ;  yet  the  principle  is  clear  enough.  Is  the  intent  one  to  pre- 
pare an  article  of  contmband  merchandise,  to  be  sent  to  the  market 
of  a  belligereiii,  -M'tject  to  the  chances  of  capture  and  of  the  mar- 
ket? Or,  on  the  o' her  hand,  is  it  to  fit  out  a  vessel  which  shall  leave 
■our  port  to  cruise,  iiipiiediately  or  ultimately,  against  the  commerce 
•of  a  friendly  nation  ?  The  latter  we  are  bound  to  prevent.  The 
former  the  belligerent  must  prevent-  Judge  Betts  then  proceeded 
to  say:  *'  The  evidence  in  the  present  case  leaves  no  rational  doubt 
that  what  was  done  here  in  respect  to  the  Meteor  was  done  with  the 
intent  that  she  should  be  employed  in  hostile  operations  in  favor  of 
Chile  against  Spain  ;  and  that  what  was  done  by  her  owners  towards 
dispatching  her  from  the  United  States  was  done  in  pursuance  of 
an  arrangement  with  the  authorized  agents  of  Chile  for  her  sale  to 
that  government,  and  for  her  employment  in  hostilities  against 
Spain,  and  that  the  case  is  not  one  of  a  bona  fide  commercial  dealing 
in  contraband  of  war.  With  these  views,  there  must  be  a  decree 
condemning  and  forfeiting  the  property  under  seizure,  in  accord- 
ance with  the  prayer  of  the  libel." 

Judge  Betts'  decree  was  reversed  in  the  circuit  court,  where  the 
following  opinion  Avas  delivered  by  Mr.  Justice  Nelson  : — 

"This  is  an  appeal  in  admiralty  from  a  decree  of  condemnation  in 
a  libel  of  information  for  the  violation  of  the  neutrality  laws  of  the 
United  States.  "NYe  have  examined  the  pleadings  and  proofs  in  the 
case,  and  have  been  unable  to  concur  in  the  judgment  of  the  court 
below,  but  from  the  pressure  of  other  business  have  not  found  time 
to  write  out  at  large  the  grounds  and  r  asons  for  the  opinion  arrived 
at.  We  must,  therefore,  for  the  present,  be  content  in  the  state- 
ment of  our  conclusions  in  the  matter. 


420  BELLIGERENTS    AND    NEUTItALS.  [PAKT  11. 

"  1.  Although  negotiations  were  commencetl  and  carried  on  be- 
tween the  owners  of  the  Meteor  and  agents  of  the  Government  of 
Chile,  for  the  sale  of  her  to  the  latter,  w  ith  the  knowledge  that  she 
would  be  employed  against  the  Government  of  Spain,  with  Avhicli 
Chile  was  at  war,  yet  these  negotiations  failed  and  came  to  an  end 
from  the  inability  of  the  agents  to  raise  the  amount  of  the  purchase- 
money  deniandt'd  :  and  if  the  sale  of  the  vessel,  in  its  tlien  condition 
and  equipment,  to  the  Chilean  (iovernment  would  have  been  a  viola- 
tion of  our  neutrality  laws,  of  which  it  is  unnecessary  toex})ress  any 
opinion,  tlie  termination  of  the  negotiation  put  an  end  to  this  ground 
of  complaint. 

"  2.  The  furnishing  of  the  vessel  with  coal  and  provisions  for  a 
voyage  to  Panama,  or  some  other  port  of  South  America,  and  the 
purpose  of  the  owners  to  send  her  thither,  in  our  judgment,  was  not 
in  pursuance  of  an  agreement  or  understanding  with  the  agents  of 
the  Chilean  Government,  but  for  the  purpose  and  design  of  finding  a 
market  for  her,  and  that  the  owners  were  free  to  sell  her  on  her 
arrival  there  to  the  Government  of  Chile  or  of  Spain,  or  of  aTiy  othei 
Govermnent  or  person  witli  whom  they  might  be  able  to  negotiate 
a  sale. 

"3.  The  witnesses  chiefly  relied  on  to  implicate  the  owners  in  the; 
negotiations  witli  the  agents  of  tiie  Chilean  (Tovernment,  with  a  view 
and  intent  of  fitting  out  and  equip{)ing  the  vessel  to  be  employed  in 
the  war  with  Spain,  are  persons  who  had  volunteercil  to  negotiate 
on  l)ehalf  of  the  agents  with  the  owners  in  expectation  of  large  com. 
missions  in  the  event  of  a  sale,  or  persons  in  the  expectation  of  em. 
ployment  in  some  situation  in  the  command  of  the  vessel,  and  very 
clearly  manifest  their  disappointment  and  chagrin  at  the  failure  of 
the  negotiations,  and  whose  testimony  is  to  be  examined  with  con- 
siderable distrust  and  suspicion.  "We  are  not  satisfied  that  a  case  is 
made  out,  upon  the  proofs,  of  a  violation  of  the  neutrality  laws  of 
the  United  States,  and  must,  therefore,  reverse  the  decree  below, 
and  enter  a  decree  dismissing  the  libel." 

xVn  appeal  was  taken  by  the  Government  from  the  decision  of  the 
circuit  court  to  the  Supreme  Court  of  tlie  United  States,  but  was 
not  prosecuted  to  a  hearing,  being  dismissed  by  consent  Xovember 
9,  180S.1 

'  In  a  criticism  on  Judge  Betts'  ruling,  in  the  "  North  American  Review  "  for 
October,  1866  (vol.  103,  p.  188),  we  have  the  following  :— 

"  It  ha.s  been  by  many  supposed  that  the  decision  in  this  Meteor  case  will  be  of 
great  weight  and  impoilance  as  a  precedent  in  the  question  of  the  Alabama  and 
other  Confederate  vessels,  now  pending  bet^veen  this  country  and  Great  Britain, 
and  the  siuspicion  has  been  intimated  liy  some  that  the  law  was  a  little  warped  by 


CHAl'.  HI. J  THE   TEIICEIIIA    AFEAlll.  421 


THE  TERCEIRA  AFFAIR,  1827. 

{Phillimore,  3d  Ed„  III.,  287.) 

An  expedition  having  left  English  ports  to  attack  the  government  of  Portugal, 
a  British  squadron  was  despatched  in  pursuit  ;  finding  the  vessels  of  the  expedi- 
tion in  Portuguese  waters,  the  English  captain  kept  a  close  watch  upon  them, 
and  finally  ordered  them  out  of  the  ueigborhood. 

"  In  1827,  Don  Pedro,  having  retained  to  himself  the  empire  of  the 
IJrazils,  formally  renounced  the  throne  of  Portugal  in  favor  of  his 
daughter,  Donna  Maria,  having  delegated  to  his  brother,  Don  Miguel, 

the  learned  judge  with  the  charitable  intent  of  aiding  Mr.  Seward  in  the  contro- 
versy. To  justify  either  of  these  ideas,  it  is  of  course  primarily  necessary  that 
the  cases  should  be  at  least  substantially  parallel.  That  they  are  far-  from  being 
so  may  be  briefly  shown.  The  Meteor  was  built  as  a  purely  commercial  enter- 
prise to  be  sent  to  a  foreign  land,  there  to  take  her  chance  of  finding  a  market, 
subject  to  the  risk  of  capture  on  the  way,  to  be  followed  by  confiscation  as  con- 
traband of  war,  and  to  tlie  further  risk,  should  she  reach  her  destination  in  safety, 
of  finding  no  market  in  case  the  war  should  be  drawing  to  a  close,  or  terms  could 
not  be  agreed  on  ;  liable,  also,  to  be  sold  to  any  other  bidder  who  would  pay  a 
better  price.  She  differed  nowise  from  any  other  contraband  merchandise,  ex- 
cept in  the  wholly  insignificant  fact  that  instead  of  being  of  such  a  nature  as  to 
require  to  be  caiTied  she  was  able  to  move  herself.  She  was  simply  a  mercantile 
speculation  in  contraband  merchandise,  which  is  of  all  men  and  nations  confess- 
edly and  avowedly  legitimate.  The  Alahanui  presents  no  one  of  these  charac- 
teristics. *  *  *  The  question  then  being  as  Mr.  Dana  says,  of  intent,  the  vital 
difference  is  readily  distinguishable.  The  English  builders  had  assured  their 
trade  before  they  entered  upon  the  undertaking  ;  tlie  American  mercJiants  only 
had  in  view  a  quite  probable  purchaser.  The  former  were  not  free  to  dispose  of 
their  ship  to  any  person  who  might  offer  her  price,  for  she  was  bespoken  ;  the 
latter  would  have  been  veiy  glad  to  have  received  and  closed  with  a  fair  offer 
from  any  source.  In  short,  the  action  of  the  former  betrays  clearly  the  intent, 
the  element  of  illegality,  but  how  the  action  of  the  latter  can  have  been  regarded 
in  the  same  light  we  must  confess  ourselves  unable  to  see.  AVhere,  then,  is  the 
similarity  ?  Or  why  should  it  have  been  conceived  necessary  to  sacrifice  the 
Meteor,  to  overrule  old  and  good  law,  to  create  a  new  necessity  requiring  to  be 
met  by  new  statutes  of  untried  efficiency,  simjilyfor  the  purpose  of  creating 
a  precedent  which  is  after  all  no  precedent  ?  " 

Dana  says  of  the  Practice  of  the  United  States  (note  to  Wheaton,  p.  562) :  "  As 
to  the  preparing  of  vessels  within  our  jurisdiction  for  subsequent  hostile  opera- 
tions, the  test  we  have  applied  lias  not  been  the  extent  and  character  of  the  prep- 
arations, but  the  intent  with  which  the  particular  acts  are  done.  If  any  person 
does  any  act,  or  attempts  to  do  any  act,  towards  such  preparation,  with  the  intent 
that  the  vessel  shall  be  employed  in  hostile  operations,  he  is  guilty,  witliout  I'efer- 


422  r.Kij.:(;i:i;i:NTs  and  Ni:["n:ALS,  [i'Ai;t  ii. 

the  office  of  Refjeiicy  of  the  kiii;^«hnn,  with  the  intention  thut  he 
should  iiiiury  his  niece. 

"  Donna  Maria  II.  was  recognizfd  hy  (iieat  Ihitain  and  the  other 
great  power.s  of  Europe  as  tlie  legitimate  sovereign  of  Portugal. 

cnce  to  the  completion  of  the  preparations,  or  to  the  extent  to  wliich  they  have 
j^one,  and  aitliough  liLs  attempt  may  have  residted  in  no  definite  progress  towards 
tlie  comjdftion  of  the  preparation.s.  The  pro<;ui-Lng  of  niateriaLs  to  be  used, 
knowingly  and  vviLli  tlio  intent,  etc..  Is  an  offence.  *  *  * 

"  On  tlie  i)(>int()f  th(;int(;nt,  more  nicety  and  dLscrimination  are  necessary-.  If 
tlie  person  cliarj^cd  lias  liiinKclf  th<;  control  of  the  vessel,  t<j  put  her  into  foreign 
liclligerent service,  the- (inestion  of  tin;  irit<;nt to  employ  her  is  simple.  If  hehas 
not,  he  is  still  chargcahle  with  doing  acts,  or  being  knowingly  concerned  in  the 
doing  of  a^'ts,  of  or  towards  the  preparation,  with  tlu;  inU;nt  that  the  ves.sel  shall 
be  so  emj^loycfl  though  others  may  control  her  during  the  j)reparation.s.  But  the 
intent  must  be  tliat  she  sliall  be  so  employed  ;  and  the  intent  must  be  a  fixed  and 
pre.sent  intent,  and  not  a  wLsh  or  desire  merely  that  she  may  be.  If  there  is  a 
contingency,  it  must,  to  exculpatfj  the  party,  be  one  which  forms  a  condition 
precedent  to  the  intent,  and  ncjt  merely  a  condition  jirecedent  to  the  employment, 
oracondition  sui)s('(|ucnt  whi(;h  may  defeat  the  int^-nt.  Thus,  if  theownerofa 
vessel,  notcomplcU'ly  ready  ff)r  hostile  of)erations,  with  instructions  to  her  com- 
mander to  ccjniplete  her  j)reparati(m  and  obtain  Iett<'rsof  marque  in  the  port  of 
destination,  and,  in  case  of  failure  in  obtaining  the  comnussion  and  e(jvn|)ment, 
t)  take  aerugo  and  return,  he  woidd  doubtless  Ix;  guilty  ;  for  he  iias  entered  on 
tlie  execution  of  liLs  purpose-,  and  those  are  only  tlu;  ordinary  contingencies  t<^) all 
employments,  by  which  they  may  be  defeated.  But  the  purpose  to  which  he 
shall  put  his  vessel  after  her  arrival  may  defKnid  on  circumstances  so  entirely  con- 
tingent and  fortuitous,  as  to  relieve  from  the  charge  of  a  fixed  intent  at  the  time 
he  sends  her  out. 

"  It  will  be  seen  at  once,  by  these  abstract  definitions,  that  our  rules  do  not  in- 
terfere with  bona,  flic  commercial  dealings  in  (;oiitraband  of  war.  An  American 
merchant  may  builil  and  fully  arm  a  vessel,  and  supply  lu-r  with  stfjres,  and  offer 
In  r  for  sale  in  our  own  market.  If  li(r  does  any  acts,  as  an  agent  or  .ser\'antof  a 
belligtrient,  <;r  in  pui-suan<;<!  of  an  arrangeiiKnt  or  un<lerst;uiditig  with  a  bellig- 
erent, thatslu;  shall  IxM-mployed  in  hostilities  when  sold,  he  is  guilty.  He  may, 
without  violating  our  law,  send  outsuch  a  ves.sel,  so  etiuipiK'd,  under  the  fliig and 
papers  of  liLs  own  country, with  no  more  force  of  crew  than  Ls  suitable  for  naviga- 
tion, with  no  right  tf>  resist  search  or  seizure,  and  to  take  the  chances  of  capture 
as  contraband  merchandise,  of  blockade,  and  of  a  market  inabelUgerent  port. 
In  such  ca.se,  the  extent  and  character  of  the  efjuipments  is  as  immaterial  as  in 
the  other  cla.ss of  ca.ses.  The  inUjnt  Ls  all.  The  act  is  o|)en  t^)  great  susjiicions 
anil  abiLse,  and  the  line  may  ofU-n  be  scarcely  traceaJde  ;  yet  the  prinri|)le  is  clear 
enough.  Is  the  intent  on(;  to  [nvparean  articl<^  of  contraliaiid  merchandise,  to  bn 
Kent  to  the  market  of  a  belligerent,  subject  to  the  chances  of  capture  and  of  the 
market?  Or,  0:1  thrjotlur  hand,  is  it  to  fit  out  a  vessid  which  .shall  leave  our  port 
I  »  crui.se,  immediately  or  ultimately,  against  the  commerce  of  a  friendly  nation  ? 
'riie  Iatt«;r  wearebrjund  to  prevent.  The  former  the  belligerent  must  prevent. 
Intheformerca.se,  the  ship  Ls  merchandise,  undiT  bona  fide  neuti'al  flag  and 
]i:iperK,  with  a  jxirt  of  destination,  subject  to  search  and  capture  as  contraband 
merchandLse  by  the  other  belligerent,  or  to  the  risks  of  blockade,  and  vvithuo 


OHM'.  III.]  THE   TEUCErilA    AFFAIR.  423 

"  Don  Miguel,  however,  after  a  very  short  period,  violated  all  his 
engageiuents,  placed  himself  at  the  head  of  the  Absolutists,  procured 
himself  to  be  proclaimed  king  iu  1828,  proscribed  the  Constitutional- 
ists, and  plunged  tiu;  country  into  the  horrors  of  a  civil  war. 

"  The  sov(;r(;igns  of  Europe,  excc{)t  the  King  of  Spain,  still  kept 
aloof  from  any  connnuni(;atioii  with  tlie  usui'per — from  any  act 
w  hich  might  be  considered  a  recognition  of  his  title,  ''i'lie  Portu- 
guese refugees,  and  the  Ministers  of  J)ou  I'edro,  insisted  that  they 
ought  to  do  more,  and  drive  him  from  his  throne  by  positive  inter- 
ference. These  applications  were  addressed  particularly  to  the 
IJi-iLish  Ministry. 

"The  British  Government  refused,  however,  to  interfere  in  this 
domestic  quarrel ;  and,  holding  that  it  was  not  entitled  to  make  any 
distinction  between  the  claimants  of  the  Portuguese  crown,  in  so  far 
as  their  respective  pi'etensions  were  supported  only  by  domestic 
force,  considered  itself  bound  to  observe,  in  regard  to  all  military 
operations,  a  strict  neutrality.  A  great  number  of  Portuguese  refu- 
gees, most  of  them  niilitai'y  men,  had  arrived  in  England,  taking  up 
their  residence  principally  in  Poi'tsmouth,  Falmouth,  and  the  neigh- 
borhood. As  it  was  believed  that  they  were  meditating  to  fit  out 
some  expedition  from  these  [)oi'ts  against  Don  Miguel,  the  liritish 
government,  holding  that  to  pei-mit  this  would  be  a  breach  of  neu- 
trality, informed  the  Brazilian  minister  that  it  would  not  allow  such 
designs  to  be  carried  on  in  15ritish  har])ors,  and  that,  for  security's 
sake,  the  refugees  must  remove  farther  from  the  coast.  The  Envoy 
then  stated  that  those  troops  were  about  to  be  conveyed  to  Brazil; 
and  accordingly  four  vessels,  having  on  board  G52  officers  and  men, 
under  the  command  of  General  Count  Saldaidia,  who  htfd  been  the 
constitutional  Minister  of  War,  sailed  from  Plymouth.  The  British 
govei-nment  suspected  that  the  true  design  was  to  land  these  troops 
at  Terceira,  although  the  ostensible  destination  was  Brazil,  Notice 
was  given  to  them  before  they  sailed,  that  any  such  attempt  woukl 
be  resisted,  and  a  small  force  of  armed  vessels,  under  the  command 
of  Captain  Walpole,  of  the  Ranger,  was  despatched  beforehand  to 
Terceira,  to  enforce  the  prohibition.     ITis  instructions  were  to  cruise 

right  to  resist  search  and  seizure,  and  liable  to  be  treated  as  a  pirate  by  any 
nation,  if  she  does  any  act  of  Jiostility  to  the  property  of  a  belligerent,  as  much  as 
if  she  did  it  to  tliat  of  a  neutral.  Such  a  trade  in  contraband,  a  belligerent  may 
cut  off  by  cruising  the  seas  and  ))y  blockading  liis  enemy's  ports.  But,  to  protect 
liimself  against  vessels  sailing  out  of  a  neutral  port  to  commit  hostilities,  it  would 
benecessary  forhim  tolioverofTtlie  ports  of  the  neutral;  and,  to  do  that  effect- 
ually, he  must  maintain  a  kind  of  Ijlockade  of  the  neutral  coast ;  which,  as 
neutrals  will  not  permit,  they  ought  not  to  give  occasion  for." 


424  BELLIGEUENTS    AND    NEUTRALS.  [PAP.T  II. 

off  tlie  isliind,  to  inform  the  Portuguese  if  tliey  appeared  that  he  had 
authority  to  prevent  tlieir  landing- ;  '  and,  should  they  persist,  not- 
withstanding such  warning,  in  hovering  about,  or  in  makmg  any 
efforts  to  effect  a  landing,  you  are  then  to  use  force  to  drive  them 
awa}^  from  that  neighborhood,  and  keep  sight  of  them  until  you 
shall  be  convinced,  by  the  course  they  may  steer,  and  the  distance 
they  may  have  proceeded,  that  they  liave  no  intention  of  returning 
to  the  Western  Islands,  or  to  proceed  to  Madeira.' 

"  The  expedition  of  Count  Saldanha  appeared  off  Terceira  on  the 
IGtli  of  January,  and  was  discovered  by  Captain  Walpole  stand- 
ing right  in  for  Port  Praya.  He  fired  two  shots  to  bring  them  to, 
but  they  continued  their  course.  The  vessel,  on  board  of  which  was 
Saldanha,  although  now  within  point-blank  range  of  the  Banger  s 
guns,  seemed  determined  to  push  in  at  all  hazards.  To  prevent  him 
from  effecting  his  object  Captain  Walpole  was  under  the  necessity 
of  firing  a  shot  at  the  vessel,  which  killed  one  man  and  wounded  an- 
other. The  vessels  then  lay  to,  and  to  a  note  from  Captain  ^Val- 
l)ole,  inquiring  what  was  their  object  in  coming  thither,  Saldanha 
answered,  '  My  object  in  appearing  here  is  to  fulfil  the  orders  of  ITer 
^Majesty  the  Queen  of  Portugal,  and  which  prescribe  me  to  conduct, 
unarmed,  without  any  hostile  appearance,  to  the  isle  of  Terceira.  the 
men  that  are  on  board  the  four  vessels  in  sight,  which  island  has 
never  ceased  to  obey  and  acknowledge,  as  its  legitimate  sovereign. 
Her  Faithful  Majesty  Donna  Maria  II.  As  a  faithful  subject  and 
soldier,  I  think  it  unnecessary  to  assure  you  that  I  am  determined  to 
fulfil  my  duty  at  all  peril.'  Captain  Walpole  replied,  that  he  too  had 
instructions  to  obey,  and  an  imperious  duty  to  perform;  that  botli 
of  them  prevented  him  from  allowing  the  Count,  or  any  part  of  his 
force,  to  land,  either  at  Terceira,  or  on  any  of  the  Western  Islands 
or  the  Azores,  or  even  to  continue  in  that  neighborhood ;  that,  there- 
fore, unless  the  Count  immediately  quitted  the  vichiity  of  the  islands 
he  should  be  obliged,  and  was  determined,  to  use  force  to  compel  him 
to  do  so.  Saldanha  then  declared  that  he  considered  himself  and  his 
men  as  being,  in  these  circumstances.  Captain  Walpole's  prisoners. 

"  Count  Saldanha,  and  his  squadron,  instead  of  returning  to  Eng- 
land proceeded  to  Brest. 

"  The  act  of  the  British  Government  produced  a  great  excitement 
in  England,  and  very  animated  debates  in  Parliament,  in  which  the 
principles  of  International  Law  were  laid  down  with  great  ju'ecision, 
and  discussed  with  no  ordinary  ability. 

"  The  Government  defended  the  instructions  given  to  Captain  Wal- 
pole upon  the  ground  that  the  refugees  had  fitted  out  a  warlike  ar- 
niamejit  in  a  British  port ;  that  the  armament  having  been  equipped 


CHAP.  III.]  THE    '•  ALAP.A.MA."'  425 

under  the  disguise  of  a  destination  to  Brazil,  had  not  been  prevented 
from  sailing-,  as  it  otherwise  would  have  been,  out  of  the  port  of 
Plymouth  ;  and  that  they  were,  therefore,  bound,  by  the  duties  of 
neuti-ality,  to  prevent  by  force  an  armament  so  equipped  from  dis- 
embarking-, even  in  the  harbor  of  the  Queen  of  Portugars  dominions. 
The  Government  were  snpi)ortc'd  by  a  majority  in  both  Houses  of 
Parliament;  but  in  the  protest  of  the  House  of  Lords,  or  in  the  reso- 
lutions of  the  House  of  Connnons,  the  true  principles  of  International 
Law  are  to  be  found. 

"  The  protest  of  the  House  of  Lords  is  as  follows  : — 
"  '  Because  the  forcible  detention  or  interruption  of  the  subjects  of 
a  belligerent  state,  upon  the  high  seas,  or  within  the  legitimate  juris- 
diction of  either  of  the  belligerents,  by  a  neutral,  constitutes  a  direct 
breach  of  Neutrality,  and  is  an  obvious  violation  of  the  Law  of 
Xations.  And  such  an  act  of  aggression,  illegal  and  unjust  at  all 
times  against  a  people  with  whom  the  interfering  power  is  not  act- 
ually at  M'ar,  assumed  in  this  instance  a  yet  more  odious  and  un- 
generous aspect,  inasmuch  as  it  was  exercised  against  the  unarmed 
subjects  of  a  defenseless  and  friendly  sovereign,  whose  elevation  and 
right  to  the  Crown  of  Portugal  had  been  earnestly  reconnuendedand 
openly  recognized  by  His  Majestj^  and  whose  actual  residen(;e  in 
Great  Britain,  bespeaking  conlidence  in  the  friendship  and  protection 
of  the  king,  entitled  both  her  and  her  subjects  to  especial  favor  and 
countenance,  even  if  considerations  of  policy  precluded  His  Majesty's 
government  from  enforcing  her  just  pretensions  by  arms.'" 

Resolutions  moved  in  the  House  of  Commons  suggested,  "  That 
the  use  of  force  in  intercepting  these  unarmed  vessels,  and  prevent- 
ing them  from  anchoring  and  landing  their  passengers  in  the  harljor 
of  Porto  Praira,  was  a  violation  of  the  sovereignty  of  the  state  to 
which  the  island  of  Terceira  belonged ;  and  that  the  further  inter- 
ference to  compel  those  merchant  ships  or  transports  to  quit  tlie 
neighl)orhood  of  the  Azores  was  an  assumption  of  jurisdiction  upon 
the  high  seas,  neither  justified  by  the  necessity  of  the  case,  nor  sanc- 
tioned by  the  general  Law^  of  Xations."  (Quoted  from  Cobbett's 
''Cases,"  p.  2G4.) 

THE  "ALABAMA,"  1862. 
{Pcq^ers  Relating  to  the  Treaty  of  Washington.) 

The  Alabama,  known  in  the  shipyard  as  the  "  290,"  was  built  at 
Liverpool  by  Messrs.  Laird  &  Co.,  and  launched  on  the  15th  of  May, 
1SG2.     Mr.   Dudley,  L'nited  States  consul  at  Liverpool,  having  ob- 


426  BELLIGERENTS    AND    NEUTP.ALS.  [PAUT  II 

taiued  evidence  that  the  " 290 "  was  constructed  as  a  vessel  of  war 
and  was  being  built  for  the  Confederate  government,  transmitted 
this  information  to  Mr.  Adams,  tlie  United  States  minister  in  Lon- 
don. On  the  23d  of  June,  1862,  Mr.  Adams  wrote  to  Earl  Russell, 
foreign  secretary,  enclosing  the  letter  of  Mr.  Dudley,  and  said: 
"  This  vessel  has  been  built  and  launched  from  the  dockyard  of  per- 
sons, one  of  whom  is  now  sitting  as  a  member  of  the  House  of  Com- 
mons, and  is  fitting  out  for  the  especial  and  manifest  object  of  carry- 
ing on  hostilities  b}'  sea.  It  is  about  to  be  conuuanded  by  one  of  the 
insurgent  agents,  the  same  who  sailed  in  the  Oreto.  The  parties 
engaged  in  the  enterprise  are  persons  well  known  at  Liverpool  to  be 
agents  and  officers  of  the  insurgents  in  the  United  States,  the  nat- 
ure and  extent  of  whose  labors  are  well  explained  in  the  copy  of 
an  intercepted  letter  of  one  of  them,  which  I  received  from  my  gov- 
ernment some  days  ago,  and  which  I  had  the  honor  to  place  hi  your 
lordship's  hands  on  Thursday  last." 

On  the  1st  of  July,  1862,  the  commissioners  of  customs,  to  whom 
had  been  referred  Mr.  Adams'  letter  to  Earl  Russell,  and  itsinclosure 
reported  to  the  Lords  Commissioners  of  the  Treasury,  that  the  ves- 
sel was  undoubtedly  intended  for  a  ship  of  war,  but  as  yet  there 
were  neither  guns  nor  gun-carriages  on  board,  "and,  having  referred 
the  matter  to  our  solicitor,  he  has  reported  his  opinion  that  at  pres- 
ent there  is  not  sufficient  ground  to  warrant  the  detention  of  the 
vessel  or  any  interference  on  the  part  of  this  department,  in  which 
rei)ort  we  beg  to  express  our  concurrence."  The  comTuissioners 
further  suggested  that  the  American  consul  should  submit  any  evi- 
dence he  might  procure  to  the  collector  of  customs  at  Liverpool, 
"  who  would  thereupon  take  such  measures  as  the  provisions  of  the 
Foreign  Enlistment  Act  would  require."  This  suggestion  was  acted 
upon  by  Mr.  Dudley,  and  a  mass  of  evidence,  including  six  affidavits 
showing  the  true  state  of  affairs,  were  laid  before  Mr.  Edwards,  the 
collector  at  Liverpool.  Tliis  evidence  was  again  referred  to  the 
commissioners  of  customs,  who  again  advised,  Julj^  22d,  that  there 
was  not  sufficient  evidence  to  detain  the  vessel.  The  same  evidence 
having  been  submitted  to  3Ir.  R.  P.  Collier,  barrister,  he  gave  the 
following  opinion  on  July  2:jd  :  "  I  have  perused  the  above  affida- 
vits and  am  of  opinion  that  the  collector  of  customs  would  be  justi- 
fied in  detaining  the  vessel.  Indeed,  I  should  think  it  his  duty  to 
detain,  and  that  if,  after  the  application  which  has  been  made  to 
him,  supported  by  the  evidence  which  has  been  laid  before  me,  he 
allows  the  vessel  to  leave  Liverpool,  he  will  incur  a  heavy  responsi- 
bility, of  which  the  board  of  customs,  under  whose  direction  he  ap- 
pears to  be  acting,  must  take  their  share. 


CHAP,  in.]  THE    "  ALABAMA."  427 

"It  appears  difficult  to  make  out  a  stronger  case  of  infringement 
of  the  Foreign  Enlistment  Act,  Avhich,  if  not  enforced  on  this  occa- 
sion, is  little  better  than  a  dead  letter. 

"It  well  deserves  consideration  whether,  if  the  vessel  be  allowed 
to  escape,  the  Federal  government  would  not  have  serious  grounds 
of  remonstrance." 

Finally,  on  July  24th,  Mr.  Adams  sent  to  Earl  Russell  copies  of 
two  additional  affidavits,  and  of  Mr.  Collier's  opinion,  and  on  the 
same  day  the  commissioners  of  customs  referred  the  matter  to  the 
law  officers  of  the  Crown,  as  did  Earl  Russell  on  the  26th. 

On  Tuesday,  the  29th,  the  law  officers,  before  whom  all  the  evi- 
dence had  been  laid,  reported  to  the  Secretary  of  State  for  Foreign 
Affairs  their  opinion  that  the  vessel  should  be  detained. 

But  on  the  morning  of  the  29th  of  July  the  "  290  "  w^ent  to  sea, 
without  a  clearance,  ostensibly  on  a  trial  trip,  carrying  with  her  a 
party  of  ladies  and  gentlemen,  who  were,  however,  sent  back  by  a 
tug  from  the  mouth  of  the  river.  She  proceeded  to  Moelfra  Bay,  on 
the  coast  of  Anglesea,  where  she  remained  at  anchor  until  the  morn- 
ing of  July  31st,  and  took  on  board  about  40  men,  who  had  been 
sent  after  her  from  Liverpool  in  a  tug.  And  although  it  was 
known  to  the  customs  officers  at  Liverpool  on  July  30th  that  the  tup; 
was  to  take  men  to  the  "  290,"  no  steps  were  taken  to  follow  or  seize 
her. 

On  July  31st  the  "290"  sailed  for  Terceira,  in  the  Azores,  where 
she  was  met  by  two  vessels,the  Af/rijypina,  from  London,  and  tho 
BdJwma,  from  Liverpool,  which  brought  out  her  armament  and  ad 
ditional  supplies  and  seamen.  Here  the  transshipment  of  the  arma . 
ment  was  effected,  and  the  "  290,"  now  the  Alabama,  under  the  com- 
mand of  Captain  Semmes,  and  a  crew  nearly  all  British  seamen,  pro- 
ceeded on  her  cruise  to  destroy  the  commerce  of  the  United  States. 

From  this  time  until  her  destruction  by  the  Kearsarge,  on  the  19th 
of  .June,  1864,  the  Alahama  was  received  in  British  ports  as  a  for- 
eign belligerent  ship  of  war,  being  allowed  the  privilege  of  refitting 
and  of  procuring  coal  and  provisions. 

The  Alabama  captured  70  L^nited  States  vessels,  of  which  9  were 
bonded,  2  released,  2  detained,  and  -57  burned. 


428  BELLIGEBENTS   A^D   NEUTEALS.  [PART  II. 


THE  "FLORIDA,"  1862. 
(Prqjcrs  Rchttiiig  to  the   Treaty  of  Wasliiiigtmi.) 

The  Florida^  originally  known  as  the  Oreto,  was  an  h'on  screw 
gunboat  of  about  seven  hundred  tons  burden,  built  in  1861-1862, 
by  Fawcet,  Preston  &  Co.,  of  Liverpool,  on  the  oi-der  of  the  govern- 
ment of  the  Confederate  States.  To  avoid  sus[)icion,  it  was  given 
out  that  she  was  to  be  built  for  the  Italian  government,  but  the  Ital- 
ian consul  at  Liverpool  disclaimed  ail  knowledge  of  her,  and  Mr. 
Chai'les  Francis  Adams,  the  United  States  minister  in  London,  in- 
formed Earl  Ivussell  on  the  ISth  of  February,  1862,  that  she  was  in- 
tended for  the  Confederate  Government.  As  the  result  of  inquiries 
set  on  foot  by  the  British  government,  the  commissioners  of  customs 
reported  on  February  22d,  that  the  Oreto  was  a  vessel  pierced  for 
guns,  but  had  neither  guns  nor  gun-carriages  on  board,  and  that  she 
was  intended  for  the  use  of  Thomas  Brothers,  of  Palermo.  Mr.  Adams 
again  on  the  26th  of  March,  called  the  attention  of  Earl  Russell  to 
the  probable  destination  of  this  vessel ;  but  on  March  22d  she  had 
sailed  with  a  general  cargo  and  a  crew  of  52  men  for  Palermo  and 
Jamaica.  Next  appearing  at  Nassau,  in  New  Providence,  slie 
aroused  the  suspicions  of  the  American  consul  and  of  British  naval 
officers,  who  strongly  recommended  her  arrest.  Other  vessels  had 
ari'ived  from  England  with  equipment  and  guns.  The  arrest  was 
finally  made,  but  the  Vice-Admii'alty  Court  released  her  for  alleged 
lack  of  evidence.  Sailing  from  Nassau  on  July  7th,  ostensibly  for 
St.  Johns,  N.  B.,  she  was  followed  by  v^essels  bearing  her  arman)ent, 
to  Green  Cay,  another  of  the  Bahama  islands,  and  was  there  equipped 
as  a  vessel  of  war. 

After  leaving  British  waters  the  Oreto,  now  the  Florida,  proceeded 
to  Cuba,  and  soon  after  entered  the  port  of  Mobile,  eluding  the 
blockading  fleet  by  the  ruse  of  carrying  the  British  flag.  Issuing 
from  that  port  January  16,  1863,  she  again  appeared  at  Nassau  and 
was  permitted  to  take  in  a  supply  of  coal.  After  that  she  was  re- 
ceived at  various  ports  of  the  liritish  West  Indies,  and  in  some  cases 
remained  several  days,  refitting  and  procuring  coal  and  provisions. 

She  had  by  October,  1864,  destroyed  36  vessels  belonging  to  the 
merchant  marine  of  the  L'nited  States. 

The  end  of  her  career  was  now  reached.  "NVliile  lying  in  the  neu- 
tral i)ort  of  Bahia,  Brazil,  the  U.  S.  war  steamer  Wadmsetts  cut  her 


CHAP.  III.]  THE    "  GEORGIA.''  429 

out  and  towed  her  to  sea,  and  on  reaching  the  waters  of  tlie  United 
States,  she  accidentally  sank  in  Hampton  TJoads.  For  tliis  violation 
of  neutral  rights  the  United  States  made  every  possible  reparation 
to  the  government  of  Brazil. 

The  Florida  captured  36  United  States  vessels,  of  which  4  were 
bonded  and  32  destroyed. 


THE  "SHENANDOAH,"  1864. 

( Papers  Relating  to  the  Treaty  of  Washington. ) 

The  SJienandoaJi  was  originally  a  British  merchant  vessel  known 
as  the  Sea  King.  On  October  8,  1864,  she  cleared  from  London  to 
Bombay  with  a  large  supply  of  coal  and  a  crew  of  forty-seven  men. 
The  Laurel  having  sailed  the  same  day  from  Liverpool  with  guns, 
equipment  and  men,  the  two  vessels  met  off  the  island  of  Madeira, 
and  as  in  the  case  of  the  Alabama,  and  Florida.,  the  Sea  King  was 
transformed  into  a  Confederate  cruiser,  under  the  name  of  the 
Shenandoah,  and  proceeded  to  prey  upon  the  commerce  of  the  L^nited 
States.  She  crossed  the  Atlantic,  rounded  Cape  Horn,  and  arrived 
at  Melbourne  on  the  25th  of  January,  1865.  Notwithstanding  the 
remonstrance  of  the  United  States  consul  at  Melbourne,  she  was 
allowed  to  make  extensive  repairs,  to  take  in  supplies  and  coal  and 
to  enlist  more  than  forty  seamen.  Proceeding  on  her  cruise,  she 
destroyed  many  LTnited  States  whaling  vessels  in  the  Northern 
Pacific,  and  a  considerable  number  after  the  war  had  ended.  Finally, 
having  made  her  way  back  to  Liverpool,  she  was  surrendered  to  the 
English  government,  by  wiiom  she  was  transferred  to  the  United 
States  consul.  The  Shenandoah  captured  36  L'nited  States  vessels, 
31  of  which  were  destroyed,  3  bonded,  and  2  ransomed. 


THE  "GE0RGL4,"  1863. 

(Papers  Relating  to  the  Treaty  of  Washington.) 

The  Georgia.,  previously  known  as  the  Japan.,  and  the  Yirginia,  was 
built  at  Dumbarton,  on  the  Clyde,  and  was  equip[)ed  by  a  Liverpool 
firm.  Her  crew  were  shipped  by  the  same  Liverpool  firm  for 
Shanghai,  and  sent  round  to  Greenock  by  steamer.  She  was 
entered  on  the  31st  of  March,  1863,  as  for  Point  de  Galle  and  Hong 


430  BELLIGERENTS    AND    NEUTRALS.  [I'ART  II. 

Kong,  with  a  crew  of  forty-eight  men.  She  cleared  on  the  1st  of 
April,  and  left  her  anchorage  on  the  2d,  ostensibly  to  try  her  en- 
gines, but  did  not  return.  She  had  no  armament  on  leaving  Green- 
ock, but  a  few  days  after  her  departure  a  small  steamer  named  the 
Allar,  freighted  with  guns  and  anununition,  and  having  on  board  a 
partner  of  the  Liverpool  firm  who  had  equipped  her,  left  Newhaven 
and  met  the  Georgia  off  the  coast  of  France,  near  Ushant.  The 
cargo  of  the  Alku'  was  transferred  to  the  Georgia  on  the  8th  or  9th 
of  April,  and  the  Allar  put  into  Plymouth  on  the  11th,  bringing  the 
Liverpool  merchant  who  had  directed  the  proceedings  throughout, 
and  bringing  also  fifteen  seamen  who  had  refused  to  proceed  in  the 
Georgia^  on  learning  her  real  character.  The  rest  of  the  crew,  Brit- 
ish subjects,  remained. 

The  Georgia  was  received  in  various  British  ports  as  a  Confeder- 
ate man-of-war;  but  not  being  very  successful  in  capturing  ships 
she  returned  to  Liverpool  on  May  2, 1864,  and  at  Birkenhead  was  dis- 
mantled, her  stores  sold,  and  the  vessel  disposed  of  to  an  English 
merchant.  The  United  States  did  not,  however,  recognize  the 
validity  of  this  transfer,  and  she  was  subsequently  captured  oil 
Lisbon  by  an  American  cruiser,  and  condemned  as  prize.  The 
Georgia  captured  9  vessels,  2  of  which  were  bonded. 

Two  members  of  the  Liverpool  firm,  wlio  had  engaged  in  enlisting 
men  for  the  Georgia,  were  indicted  under  the  Foreign  Enlistment 
Act,  and,  on  conviction,  sentenced  to  fines  of  £50. 


CASES  OF  THE  "SUMPTER"  AND  OTHEPt  VESSELS, 

1861-1865. 
{Papers  Relating  to  the  Treaty  of  Washington.) 

The  Sumpter,  previously  the  merchant  steamer  Havana,  was  fitted 
out  at  New  Orleans  as  a  vessel  of  war,  and  sailed  the  30th  of  June, 
1861,  under  the  command  of  Captain  Semmes.  On  the  30th  of  July 
she  entered  the  harbor  of  Trinidad,  and  was  the  first  of  the  Confed- 
erate cruisers  to  receive  the  recognition  of  England  as  a  legitimate 
ship  of  war  of  a  recognized  belligerent.  She  remained  six  days,  and 
was  allowed  to  supply  herself  with  coal  a)i(l  other  necessary  articles. 
The  Sumpter  having  entered  the  y-ort  of  Gibraltar,  she  was  there 
practically  blockaded  by  the  Ignited  States  steamer  Tui^caroi-a,  and 
in  consequence,  was  dismantled  and  sold  to  an  agent  of  Frazer,  Tren- 
holm  &  Co.,  of  Liverpool,  at  which  port  she  arrived  on  the  ITtli  of 


CHAP.  III.]  GENEVA    AWARD.  431 

February,  18G3.  She  was  subsequently  wrecked  in  attempting  to 
run  the  blockade  of  Charleston  with  a  cargo  of  contraband.  The 
Siimpter  captured  18  vessels,  8  of  which  wei'c  released,  1  recaptured, 
2  bonded,  the  rest  destroyed. 

The  IVashville  ran  out  of  Charleston  through  the  blockade  in 
Xoveinber,  1861.  Her  Confederate  commission  was  recognized  in 
the  ports  of  Bermuda  and  Soutliam[)ton,  where  she  was  permitted 
to  repair  ship  and  take  in  coal  and  jirovisions.  She  afterwards  re- 
turned to  Charleston,  and  was  not  heard  of  again  as  a  cruiser.  The 
Nashville  destroyed  2  vessels. 

The  Tallahassee  appeared  off  the  coast  of  Xew  York  in  July,  1804. 
She  was  probably  built  in  an  English  port ;  little,  however,  is  known 
of  her  construction  and  outfit,  the  chief  complaint  in  her  case  being 
that  she  was  received  in  British  ports.  She  destroyed  29  United 
States  vessels. 

The  Tacony^  the  Tuscaloosa,  the  (Jlarence,  and  the  Lajyvring, 
were  tenders  to  the  Alabama  and  the  Florida.  These  were  vessels 
captured  by  the  Alabama  and  Florida,  and  converted  into  gunboats, 
at  sea,  and  which  acted  as  tenders  to  those  two  vessels.  These 
tenders  destroyed  or  bonded  24  United  States  vessels. 


GENEVA  AWARD,  1872. 

(3  Wharton's  Digest,  630. ) 

Article  VI.  of  the  Treaty  of  Washington  of  1871,  providing,  among 
other  things,  for  an  arbitration  to  determine  British  liability  for  the 
depredations  on  the  commerce  of  the  United  States  by  the  Alabama 
and  other  Confederate  cruisers  which  left  British  waters,  is  as 
follows : 

"In  deciding  the  matters  submitted  to  the  arbitrators  they  shall 
be  governed  by  the  following  three  rules,  which  are  agreed  upon  by 
the  high  contracting  parties,  as  rules  to  be  taken  as  applicable  to 
the  case,  and  by  such  principles  of  international  law,  not  inconsist- 
ent therewith,  as  the  arbitrators  shall  determine  to  have  been  appli- 
cable to  the  case : — 

"  RULES. 

"A  neutral  Government  is  bound — 

"  First.  To  use  due  diligence  to  prevent  the  fitting  out.  arming,  or  equip- 
ping, within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable  ground  to 
believe  is  intended  to  cruise  or  to  carrj'  on  war  against  a  power  with  which  it 
is  at  peace ;  and  also  to  use  like  diligence  to  prevent  the  departure  from  its 
jurisdiction  of  any  vessel  intended  to  cruise  or  earn,-  on  war  as  above,  such 


432  BELLIGERENTS    ANT)    NEUTKALS.  [PAltT  U. 

xe?s^\  having  been  specially  adapted,  in  whole  or  in  part,  within  such  juris- 
diction, to  warlike  use. 

'  ■  Secondly.  Not  to  permit  or  suffer  either  belligerent  to  make  use  of  its  ports 
or  waters  as  the  base  of  naval  oiJerations  against  the  other,  or  for  the  purpose 
of  the  renewal  or  augmentation  of  military  supplies  or  arm3,  or  the  recruitment 
of  men. 

"  TliL'-'ily.  To  exercise  due  diligence  in  its  own  ports  and  waters,  and  as  to 
all  pei-sons  within  its  jurisdiction,  to  prevent  any  violation  of  the  foregoing 
obhgations  and  duties. 

"  Her  Britannic  Majesty  has  comraandecl  lier  liig-h  commissioners 
and  plenipotentiaries  to  declare  tliat  Her  Majesty's  Government  can- 
not assent  to  tlie  foregoing^  rules  as  a  statement  of  the  i^rinciples  of 
international  law  which  were  in  force  at  the  time  when  the  claims 
mentioned  in  Article  I.  arose,  but  that  Her  Majesty's  Government, 
in  order  to  evince  its  desire  of  strengthening  the  friendly  relations 
between  the  two  countries,  and  of  making  satisfactory  provision  for 
the  future,  agrees  that  in  deciding  the  questions  between  the  two 
countries,  arising  out  of  those  claims,  the  arbitratoi's  should  assume 
that  Her  Majesty's  Government  had  undertaken  to  act  upon  the 
principles  set  forth  in  these  rules. 

"  And  the  high  contracting  parties  agree  to  observe  these  rules  as 
between  themselves  m  future,  and  to  bring  them  to  the  knowledge 
of  other  maritime  powers,  and  to  invite  them  to  accede  to  them." 

DECISION    AND    AWAKD. 

"  The  tribunal  having  since  fully  taken  into  their  consideration 
the  treaty  and  also  the  cases,  counter-cases,  documents,  evidence, 
and  arguments,  and  likewise  all  other  communications  made  to  them 
by  the  two  parties  during  the  progress  of  their  sittings,  and  having 
impartially  and  carefully  examined  the  same, 

"  ILis  arrived  at  the  decision  embodied  in  the  present  award : 

"  Whereas,  having  regard  to  the  sixth  and  seventh  articles  of  the 
said  treaty,  the  arbitrators  are  bound  under  the  terms  of  the  said 
sixth  article,  '  in  deciding  the  matters  submitted  to  them,  to  be  gov- 
erned by  the  three  rules  therein  specified  and  by  such  principles  of 
international  law,  not  inconsistent  therewith  as  the  arbitrators  shall 
determine  to  have  been  applicable  to  the  case;' 

''And  whereas  the  'due  diligence,'  referred  to  in  the  first  and 
third  of  the  said  rules,  ought  to  be  exercised  by  neutral  govern- 
ments in  exact  proportion  to  the  risks  to  which  either  of  the  bellig- 
erents may  be  exposed,  from  a  failure  to  fulfill  the  obligations  of 
neutrality  on  their  part ; 

"And  whereas  the  circumstances  out  of  which  the  facts  consti- 
tuting the  subject-matter  of  tlie  present  controversy  ai'ose  were  of  a 


CHAP.  III.]  GENEVA    AWAllI).  433 

iKiiure  to  ciill  for  the  exercise  on  the  part  of  Tier  I>ritannic 
.Majesty's  Govermiient  of  all  possible  solicimde  for  the  f)l)servan('e 
of  the  rights  and  duties  involved  in  the  [)roclainalion  of  neutrality 
issued  by  Her  Majesty  on  the  lotli  day  of  May,  ISGl. 

"And  whereas  the  effects  of  a  violation  of  neutralitj^  coniinitted 
by  means  of  the  construction,  equipment,  and  armament  of  a  vessel 
is  not  done  away  with  by  any  connnission  which  the  govei-n- 
ment  of  the  belligerent  power,  benefited  by  the  violation  of 
neutrality,  may  afterwards  have  granted  to  that  vessel;  and 
the  ultimate  step,  by  which  the  offense  is  com[)letcd,  cannot  l)e 
admissible  as  a  ground  for  the  absolution  of  the  offender,  nor  can 
the  consummation  of  his  fraud  become  the  means  of  establishing 
his  innocence. 

"And  Avhereas  the  privilege  of  extra-territoriality^  accorded  to 
vessels  of  war,  has  been  admitted  into  the  law  of  nations,  not  as  an 
absolute  right,  but  solely  as  a  proceeding  founded  on  the  principle 
of  courtesy  and  mutual  deference  between  different  nations,  and, 
therefore,  can  never  be  appealed  to  for  the  protection  of  acts  done  in 
violation  of  neutrality  ; 

"And  whereas  the  absence  of  a  previous  notice  cannot  be  re- 
garded as  a  failure  in  any  consideration  required  by  the  law  of  na- 
tions, in  those  cases  in  which  a  vessel  carries  with  it  its  own  con- 
demnation; 

And  whereas,  in  order  to  impart  to  anj'-  supplies  of  coal  a  charac- 
ter inconsistent  with  the  second  rule,  prohibiting  the  use  of  neutral 
ports  or  waters,  as  a  base  of  naval  operations  for  a  belligerent,  it  is 
necessary  that  the  said  supplies  should  be  connected  with  special 
circumstances,  of  time,  of  persons,  or  of  place,  which  may  combine 
to  give  them  such  character ; 

"And  whereas,  with  respect  to  the  vessel  called  the  Alabama,  it 
clearly  results  from  all  the  facts  relative  to  the  construction  of  the 
ship,  at  first  designated  by  the  number  '  290,'  in  the  port  of  Liver- 
pool, and  its  equipment  and  armament  in  the  vicinity  of  Terceira, 
through  the  agency  of  the  vessels  called  the  Agrippina  and  the 
Bahama.,  dispatched  from  Great  Britain  to  that  end,  that  the  British 
Government  failed  to  use  due  diligence  in  the  performance  of  its 
neutral  obligations,  and  especially  that  it  omitted,  notwithstanding 
the  warnings  and  official  representations  made  by  the  diplomatic 
agents  of  the  United  States  during  the  construction  of  the  said 
number  '290,'  to  take  in  due  time  any  effective  measures  of  preven- 
tion, and  that  those  orders  which  it  did  give  at  last,  for  the  deten- 
tion of  the  vessel,  were  issued  so  late  that  their  execution  was  not 
practicable  ; 
28 


434  BELLIGEKEXTS    AND    NEUTltALS.  [PAUT  II. 

"  And  -uiiereas,  after  the  escape  of  that  vessel,  the  measures 
taken  for  its  pursuit  and  arrest  were  so  imperfect  as  to  lead  to  no  re- 
sult, and  therefore  cannot  be  considered  su£Bcieiit  to  release  Great 
Britain  from  the  responsil)ility  already'  incurred  ; 

"  And  whereas,  in  despite  of  the  violations  of  the  neutrality  of 
Great  Britain,  committed  by  tbe  '  290,'  this  same  vessel,  later 
known  as  the  Confederate  cruiser  Alabama^  was  on  several  occa- 
sions freely  admitted  into  the  ports  of  the  colonies  of  Great  Britain, 
instead  of  being  proceeded  against  as  it  ought  to  have  been  in  any 
and  every  port  within  British  jurisdiction  in  which  it  might  have 
been  found ; 

"  .\nd  whereas  the  Government  of  Her  Britannic  Majesty  cannot 
justify  itself  for  a  failure  in  due  diligence  on  the  plea  of  insuffi- 
ciency of  the  legal  means  of  action  which  it  possessed  : 

"  Four  of  the  arbitrators  for  the  reasons  above  assigned,  and  the 
fifth,  for  reasons  separately  assigned  by  him,  are  of  opinion  that 
Great  Britain  has  in  this  case  failed,  by  omission,  to  fulfill  the  duties 
prescribed  in  the  first  and  the  third  of  the  rules,  established  by  the 
sixth  article  of  the  treaty  of  Washington. 

"  And  whereas,  with  respect  to  the  vessel  called  the  Florida,  it 
results  from  all  the  facts  relative  to  the  construction  of  the  Oreto  in 
the  port  of  Liverpool,  and  to  its  issue  therefrom,  which  facts  failed 
to  induce  the  authorities  in  Great  Britain  to  resort  to  measures  ade- 
quate to  prevent  the  violation  of  the  neutrality  of  that  nation,  not- 
withstanding the  warnings  and  repeated  representations  of  the 
agents  of  the  United  States;  that  Her  Majesty's  government  has 
failed  to  use  due  diligence  to  fulfill  the  duties  of  neutrality ; 

"And  wiiereas  it  likewise  results  from  all  the  facts  relative  to  the 
stay  of  the  Oi-eto  at  Nassau,  to  her  issue  from  that  port,  to  her  en- 
listment of  men,  to  her  supplies,  and  to  her  armament,  with  the  co- 
operation of  the  British  vessel  Prince  Alfred,  at  Green  Cay,  that 
there  was  negligence  on  the  part  of  the  British  colonial  autho- 
rities ; 

"  And  whereas,  notwithstanding  the  violation  of  the  neutrality  of 
Great  Britain,  committed  by  the  Oreto,  this  same  vessel,  later 
known  as  the  Confederate  cruiser  Florida,  was,  nevertheless,  on 
several  occasions  freely  admitted  into  the  ports  of  British  colonies ; 

"  And  whereas  the  judicial  acquittal  of  the  Oreto  at  Nassau  can- 
not relieve  Great  Britain  from  the  responsibility  incurred  by  her 
under  the  principles  of  international  law ;  nor  can  the  fact  of  the 
entry  of  tlie  Florida  into  the  Confederate  port  of  Mobile,  and  of  its 
stay  there  during  four  montlis,  extinguish  the  responsibility  pre- 
viously to  that  time  incurred  by  Great  Britain  ; 


CHAP.  III.]  GENEVA  AWARD.  435 

"For  these  reasons  the  tribunal,  l)y  a  majority  of  four  voices  to 
one,  is  of  opinion,  that  Great  Britain  has  in  this  case  failed,  by 
omission,  to  fultill  the  duties  prescribed  in  the  first,  in  the  second, 
and  in  tlie  tliird,  of  the  rules  established  by  ^Vrticle  VI.,  of  the 
Treaty  of  Washington, 

"  And  whereas,  with  respect  to  the  vessel  called  the  SJienandodli^ 
it  results  from  all  the  facts  relative  to  the  de])arture  from  L<ind()ii 
of  the  mercliant  vessel,  the  A'ea  Kukj,  and  to  the  transformation  of 
that  sliip  into  a  Confederate  cruiser  under  the  name  of  the  SJienan- 
doah^  near  the  island  of  Madeira,  that  the  Government  of  Her  Bri- 
tannic Majesty  is  not  chargeable  with  any  failure,  down  to  that  date, 
in  the  use  of  due  diligence  to  fulfill  the  duties  of  neutrality  ; 

"  But  whereas  it  results  from  all  the  facts  connected  with  the 
stay  of  the  Shenandoah  at  Melbourne,  and  especially  with  the 
augmentation  which  the  British  Government  itself  adniits  to  have 
been  clandestinely  effected  of  her  force,  by  the  enlistment  of  men 
within  that  port,  that  there  was  negligence  on  the  part  of  the 
authorities  at  that  place ; 

"  For  these  reasons  the  tribunal  is  unanimously  of  opinion,  that 
Great  Britain  has  not  failed,  by  any  act  or  omission,  *  to  fulfill  any 
of  the  duties  prescribed  by  the  three  rules  of  Article  VI.  in  the 
Treaty  of  Washington,  or  by  the  principles  of  international  law  not 
inconsistent  therewith,'  in  respect  to  the  vessel  called  the  Shenan- 
doah, during  the  period  of  time  anterior  to  her  entry  into  the  port 
of  Melbourne ; 

"  And,  by  a  majority  of  three  to  two  voices,  the  tribunal  decides 
that  Great  Britain  has  failed,  by  omission,  to  fulfill  the  duties  pre- 
scribed by  the  second  and  third  of  the  rules  aforesaid,  in  the  case  of 
this  same  vessel,  from  and  after  her  entry  mto  Ilobson's  Bay,  and 
is,  therefore,  responsible  for  all  acts  committed  by  that  vessel  after 
her  departure  from  Melbourne,  on  the  18th  day  of  February,  1865. 

"  And  so  far  as  relntes  to  the  vessels  called  the  Tuscaloosa  (ten- 
der to  the  Alabama),  the  Clarence,  the  Tacony,  and  the  Archer,  (ten- 
ders to  the  Florida),  the  tribunal  is  unanimously  of  opinion,  that 
such  tenders  or  auxiliary  vessels,  being  properly  regarded  as  acces- 
sories, must  necessarily  follow  the  lot  of  their  principals,  and  be  sul>- 
mitted  to  the  same  decision  which  applies  to  them  respectively. 

"  And  so  far  as  relates  to  the  vessel  called  Retribution,  the  tri- 
bunal, by  a  majority  of  three  to  two  voices,  is  of  opinion,  that  Great 
Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of  the 
duties  prescribed  by  the  three  rules  of  Article  VI.,  in  the  Treaty  of 
Washington,  or  by  the  principles  of  international  law  not  incon- 
sistent therewith. 


436  BELLIGEKEXTS    AND   NEUTRALS.  [PAKT  II. 

"And  so  far  as  relates  to  the  vessels  called  the  Geor<jl<i^  the 
SKiiipter,  the  XnsJuulJe^  the  Tallahassee,  and  the  ('IiicJaunauga,  re- 
spectively, the  tribunal  is  unanimously  of  opinion,  that  Great  Brit- 
ain has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of  the 
duties  prescribed  by  the  three  rules  of  Article  VI.,  in  the  Treaty  of 
■Washington,  or  by  the  principles  of  international  law  not  inconsist- 
ent therewith. 

"^\.nd  so  far  as  relates  to  the  vessels  called  the  Sallie,  the  Jeffer- 
ftrson  Dacis,  the  Jltisii;,  the  Hoston^and  the  Y.  II.  Joy  respectively, 
the  tribunal  is  unanimously  of  opinion  that  they  ought  to  be  ex- 
cluded from  consideration  for  want  of  evidence. 

"  .Vnd  whereas,  so  far  as  relates  to  the  particulars  of  the  indemnity 
claimed  by  the  United  States,  the  costs  of  pursuit  of  the  Confederate 
cruisers  are  not,  in  the  judgment  of  the  tribunal,  properly  dis- 
tinguishable from  the  general  expenses  of  the  war  carried  on  by  the 
United  States : 

"The  tribunal  is,  therefore,  of  opinion,  by  a  majority  of  three  to 
two  voices,  that  there  is  no  ground  for  awarding  to  the  United  States 
any  sum  by  way  of  indemnity  under  this  head. 

"  .Vnd,  whereas,  prospective  earnings  cannot  properly  be  made  the 
subject  of  compensation,  inasmuch  as  they  depend  in  their  nature 
upon  future  and  uncertain  contingencies  : 

"  The  tribunal  is  unanimously  of  opinion  that  there  is  no 
ground  for  awarding  to  the  United  States  any  sum  by  way  of  in- 
demnity under  this  head. 

"And,  whereas,  in  order  to  arrive  at  an  equitable  compensation  for 
the  damages  which  have  been  sustained,  it  is  necessary  to  set  aside 
all  double  claims  for  the  same  losses,  and  all  claims  for  'gross 
freights,'  so  far  as  they  exceed  '  net  freights  ' ; 

"  .Vnd,  whei'eas,  it  is  just  and  reasonable  to  allow  interest  at  a 
reasonable  rate ; 

"  And,  whereas,  in  accordance  with  the  spirit  and  letter  of  the 
Treaty  of  Washington,  it  is  preferable  to  adopt  the  form  of  adjudi- 
cation of  a  sum  in  gross,  rather  than  to  refer  the  subject  of  comjjen- 
sation  for  further  discussion  and  deliberation  to  a  board  of  assessors, 
as  provided  by  Article  X.,  of  the  said  treaty  : 

"  The  tribunal,  making  use  of  the  authority  conferred  upon  it  by 
Article  VII.,  of  the  said  treaty,  by  a  majority  of  four  voices  to  one, 
awards  to  the  United  States  a  sum  of  $15,500,000  in  gold,  as  the  in- 
denniity  to  be  paid  by  Great  Britain  to  the  United  States,  for  the 
satisfaction  of  all  the  claims  referred  to  the  consideration  of  the 
tribunal,  conformably  to  the  provisions  contained  in  Article  VII.,  of 
the  aforesaid  treaty. 


CHAr.  III.]  GENEVA    AWAIID.  437 

"And,  in  accordance  with  the  terms  of  Artisle  XT.  of  the  said 
treaty,  the  tribunal  declares  that  'all  the  claims  referred  to  in  the 
treaty  as  submitted  to  the  tribunal  are  hereby  full}^  perfectly,  and 
finally  settled.' 

"  Furthermore,  it  declares  that  '  each  and  ev^ery  one  of  the  said 
claims,  whetlier  the  same  may  or  may  not  have  been  presented  to 
the  notice  of,  or  made,  preferred,  or  laid  before  the  tribunal,  shall 
henceforth  be  considered  and  treated  as  finally  settled,  barred,  and 
inadmissible.' 

"  In  testimony  whereof  this  present  decision  and  award  has 
been  made  in  duplicate,  and  signed  by  the  arbitrators  who  have 
given  tlieir  assent  thereto,  the  whole  being  in  exact  conformity 
with  the  provisions  of  Article  VII.,  of  the  said  Treaty  of  Wash- 
ington. 

"  [Made  and  concluded  at  the  Hotel  de  Ville  of  Geneva,  in  Switzer- 
land, the  14th  day  of  the  month  of  September,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-two.^ 

"Charles  Fkaxcis  Adams, 
"  Fkedkkick  Sclopis, 
"  Stampfli, 

"  ViCOMTE    D'ITxVJUBA." 

'  The  Tliree  Rules  of  the  Treaty  of  Washington. — These  niles  have  been  the 
subject  of  widespread  interest  and  discussion.  The  question  was  immediately 
raised,  whether  they  formed,  at  tlie  time  of  the  American  civil  war,  or  indeed 
since  that  time,  a  true  expression  of  the  accepted  principles  of  International  Law. 
The  EngUsh  govermiient,  at  the  time  of  the  arbitration,  amiounced  tliat  it  did 
not  accept  them  "  as  a  statement  of  principles  of  International  Law  wliich  were 
in  force  at  the  time  when  the  claims  arose ; "  and  the  view  generally  held  in 
England  was  that  they  were  ex  post  facto  rules. 

On  tlie  other  hand,  continental  jurists  are  inclined  to  regard  these  rules  as  a 
fair  statement  of  modern  International  Law  upon  the  subject  to  whicli  they 
apply.  (See  an  article  by  Calvo  in  the  Re\aie  de  Droit  International,  vol.  VI. , 
pp.  453-532.) 

In  considering  this  question,  it  should  be  remembered  that,  by  the  introduc- 
tion of  steam  as  the  motive  power  of  ships,  and  of  iron  and  steel  as  the  material 
of  their  constraction,  the  conditions  of  maritime  warfare  have  been  very  radi- 
cally changed.  What  might  have  been  a  reasonable  rule  as  applied  in  the  time 
of  sailing  ships,  might  now,  in  the  age  of  swift  ironclads,  be  intolerably  op- 
pressive. In  the  cases  of  the  Santissima  Trinidad,  U.  S.  v.  Quincy,  and  the 
Meteor,  the  courts  were  dealing  with  small  sailing  vessels,  whicli  had  been  con- 
verted into  privateers,  the  possession  of  which  by  one  or  tlie  other  belligerent 
made  very  little  difference  in  tlie  genei'al  result  of  the  struggle  ;  whereas,  the 
possession  of  an  ironclad  shij)  miglit  very  well  turn  the  scale  one  way  or  the 
other,  as  indeed  it  did  in  the  war  between  Chih  and  P(>ru,  in  1880-1881.  This 
great  power  of  inflicting  injury  upon  one  of  the  belligerents,  it  is  fair  to  say, 


438  BELLIGERENTS    AND    NEUTRALS.  [PAKT  U. 


Sectio.v  42. — Ajd  to  Insurgents. 


(fi)  Loiina  of  JSIoaey. 

DE  WUTZ  V.  IIKXDRICKS. 

Common  Pleas,  1824. 

(9  Moore,  586.) 

The  question  of  the  legality  of  a  contract  to  negotiate  a  loan  in  aid  of  in- 
surgents. 

This  was  an  action  of  trover  for  certain  papers,  and  which  were 
described  in  tlie  declaration  to  be  a  power  of  attorney,  and  sundry 
engravings. 

At  the  trial,  before  Lord  Chief  Justice  Bi:st,  at  Guildhall,  at  the 
Sittings  after  the  last  Terra,  it  appeared  that  the  plaintiff  had  pro- 
posed to  raise  money  by  way  of  loan,  to  espouse  tlie  cause  of  the 
Greeks  against  the  government  of  the  Porte.  That  he  stated  pub- 
licly that  he  Avas  authorized  to  do  so,  and,  in  consequence,  applied 
to  the  defendant,  a  stockbroker,  to  negotiate  the  loan,  who  required 
certain  securities  to  be  left  with  him  for  that  purpose ;  that  the 
plaintiff  accordingly  lodged  with  him  a  power  of  attorney,  Avhich,  he 
stated,  was  signed  and  executed  abroad  by  the  Exarch  of  Ravenna, 
authorizing  him,  the  plaintiff,  to  raise  money  for  the  Greek  cause ; 
he  also  requested  the  defendant  to  procure  certain  scrip  receipts  to 
be  engraved,  which  he  accordingly  did,  and  which  were  afterwards 
stamped  at  the  stamp  office,  as  such  receipts.  The  defendant  suspect- 
ing the  accuracy  of  the  plaintiff's  statement  or  authority,  the  intended 
loan  failed,  and  no  money  was  raised  by  him.  The  plaintiff'  then 
claimed  the  power  of  attorney  and  engraved  scrip  receipts  from  the 
defendant,  wliicli  he  refused  to  deliver  up,  until  the  engraver's  bill 

ought  not  to  be  permitted  to  neutral  citizens  ;  and  the  neutral  nation  Ls  alone 
in  a  position  to  restrain  them. 

In  view  of  these  facts,  it  ls  believed  that  the  doctrine  set  up  b}'  the  United 
States  Neutralitj'  Act  and  by  the  Federal  Courts,  that  the  ' '  intent "  of  the  owner 
or  shipbuilder  Ls  the  criterion  by  which  his  guilt  or  innocence  is  to  be  judged, 
is  wholly  inadequate  ;  it  would  not  for  a  moment  stand  the  test  of  tlie  rule  of 
"  due  diligence."  as  applied  by  the  Geneva  tribunal. 

The  English  Foreign  Enlistment  Act  of  1870  is  perhaps  the  best  and  fairest 
expression  of  tlie  modern  rule  anywhere  to  be  found  in  puljiic  laws. 


CHAP.  III.]  DE   WUTZ    V.  HENDRICKS.  439 

and  other  expenses  had  been  paid.  On  their  amount  being  tendered, 
the  defendant  claimed  a  commission  for  scrip  on  part  of  the  loan, 
which  the  plaintiff  also  offered  to  pay,  provided  the  defendant  would 
transfer  tlie  scrip  to  him,  on  which  lie  claimed  such  commission; 
but  none  Mas  in  fact  ever  raised,  as  the  i)r()jected  loan  fell  to  the 
ground  in  the  first  instance.  Tlie  plaintiff  having  again  formally 
demanded  the  above  documents  from  the  defendant,  who  refused  to 
deliver  them  up,  he  coannenced  the  present  action. 

For  the  defendant,  it  was  submitted,  that  the  whole  of  the  trans- 
action was  a  fraud  on  the  part  of  the  plaintiff,  as  he  had  no  authority 
to  negotiate  the  loan  in  question.  And  his  Lordship  being  of  opinion, 
that  a  resident  m  this  country  could  not  enter  into  an  engagement 
to  raise  money  by  way  of  loan,  to  assist  subjects  of  a  foreign  state, 
so  as  to  enable  them  to  prosecute  a  war  against  a  government  in 
alliance  with  our  own,  without  the  license  of  the  Crown ;  the  Jury 
accordingly  found  a  verdict  for  the  defendant. 

Lord  Chief  Justice  Best. — "  I  am  of  opinion,  that  the  whole  of  the 
transaction  on  which  the  plaintiff  rested  his  claim  to  recover  the 
articles  in  question  from  tlie  defendant,  was  bottomed  in  fraud;  the 
Jury  so  found  at  the  trial ;  and  I  am  perfectly  satisfied  with  their 
verdict. 

"  I  then  thought  that  it  was  contrary  to  the  law  of  nations,  for 
persons  residing  in  this  country,  to  enter  into  engagements  to  raise 
money,  by  way  of  loan,  for  the  purpose  of  supporting  subjects  of  a 
foreign  state  in  arms  against  a  government  in  alliance  with  our 
own  ;  and  that  no  right  of  action  could  arise  out  of  such  a  transac- 
tion ;  and  I  consequently  suggested  a  nonsuit ;  but  as  it  was  not 
insisted  on  by  the  defendants'  counsel,  I  allowed  the  cause  to  pro- 
ceed. A  case  in  circumstances  precisely  similar  to  the  present, 
except  that  a  different  loan  was  pro^Dosed  to  be  raised,  was  lately 
decided  in  the  Court  of  Chancery  in  which  the  Lord  Chancellor  enter- 
tained the  same  opinion  as  myself,  and  in  which  he  is  stated  to  have 
said,  that  English  Courts  of  Justice  will  not  take  notice  of,  or  afford 
any  assistance  to  persons  who  set  about  raising  loans  for  subjects  of 
the  King  of  Spain,  to  enable  them  to  prosecute  a  war  against  that 
sovereign ;  or,  at  all  events  thnt  such  loans  could  not  be  raised 
without  the  license  of  the  Crown.  I  left  the  question  to  the  Jury  on 
the  merits,  and  they  found  that  the  power  of  attorney  was  an  abro- 
gated fabrication.  It  appeared  on  the  face  of  it  to  have  been  executed 
in  Greece,  it  was  drawn  up  in  the  modern  Greek  language,  and  was 
pretended  to  have  been  sent  from  that  country.  The  plaintiff,  how- 
ever, adduced  no  evidence  to  show  that  it  was  a  genuine  instrument; 
but,  on  the  contrary,  it  was  proved  to  have  been  executed  in  London, 


440  BELLIGEEENTS    AND    NEUTRALS.  [PART  U. 

but  by  whom  did  not  appear.  The  other  articles  sought  to  be  re- 
covered, and  described  in  the  dechiration  as  engravings,  were  scrip 
receipts,  which  could  be  of  no  value,  as  the  whole  of  the  transaction 
to  which  they  were  intended  to  be  applied  fell  to  the  ground,  as  it 
was  founded  and  bottomed  in  fraud.  It  was  proved  for  the  defend- 
ant, that  he  was  employed  by  the  plaintitf  to  negotiate  the  loan  in 
question ;  that  many  articles  had  been  written  on  the  subject,  and 
that  placards  had  been  stuck  up  in  the  city,  stating,  that  the  plaintiff 
was  not  authorized  by  the  Greek  government  to  raise  any  money, 
and  that  it  was  altogether  a  fraud. 

"  I  told  the  Jury,  that,  with  respect  to  the  power  of  attorney,  the 
plaintiff  could  not  be  entitled  to  recover,  unless  he  shewed  that  it 
was  a  genuine  instrument,  as  it  was  so  described  in  the  declaration ; 
and  that  to  render  it  valid,  he  should  have  proved  that  it  was  ex- 
ecuted in  Greece ;  but  there  was  no  evidence  whatever  to  shew  that 
fact ; — on  the  contrary,  it  was  proved  to  have  been  concocted  and 
executed  in  ^Mincing  Lane.  I  also  told  the  Jury,  that  if  the  plaintiff 
was  attempting  a  fraud  on  the  public  by  raising  money  under  a  false 
pretence,  and  that  he  caused  the  papers  in  question  to  be  delivered 
to  the  defendant  in  furtherance  of  such  attempt,  he  could  not  be 
entitled  to  recover  them  back  in  this  action.  The  Jury,  under  these 
circumstances,  were  fully  Avarranted  in  considering  the  transaction 
as  fraudulent ;  and  I  am  not  only  satisfied  with  their  verdict,  but 
am  decidedly  of  opinion  that  there  is  no  ground  whatever  to  dis- 
turb it. 

"  The  rest  of  the  Court  concurring,  Rule  refused." 


TIIOMPSOX  V.  PO^YLES. 

Chaxcery,  1828. 

{2Simo7iAM.) 

Loans  to  unrecognized  communities. 

The  contract  in  this  case  was  for  the  purchase  of  Guatemala  bonds, 
which  were  in  the  hands  of  the  London  agents  of  that  government. 

The  plaintiff  was  led  into  the  venture  by  the  fraud  and  misrepre- 
sentations of  the  agents  and  their  partners  in  guilt,  and  now  files  a 
bill  in  Chancery  for  the  recovery  of  his  money,  the  Guatemalan 
government  liaving  repudiated  its  agents  and  all  their  engagements 
because  of  these  frauds. 


CHAP.  III.]  kenx::tt  v.  chambees.  441 

The  following  is  an  exlr;  ct  from  the  judgment  of  the  Vice-Clian 
cellor : — 

"l)Ut  there  is  this  further  considenition ;  that  this  is  represented 
to  have  been  a  contract,  by  the  plaintiff,  to  p\irchase  the  obligations 
of  persons  who  were  stated  to  be  the  Government  of  the  Federal 
Republic  of  Central  America. 

"I  confess  that,  after  all  1  have  heard  fall  from  the  mouth  of  Lord 
Eldon,  on  the  subject  of  persons  representing  themselves  to  be 
Governments  of  Foreign  Countries,  which  this  Country  had  not  ac- 
knowledged to  be  Governments,  and  which  the  courts  cannot  acknowl- 
edge them  to  be,  till  the  Government  of  the  country  has  recognized 
them  to  be  so,  it  does  appear  to  me  that  this  is  a  contract  entered 
into  by  the  plaintiff  for  the  purpose  of  purchasing  that  which,  by 
the  law  of  the  land,  he  could  not  purchase.  I  think  tliat  the  eon- 
tract,  being  to  purchase  securities  from  these  i)ersons,  mIio,  as  the 
plaintiff  says,  were  the  Government  of  Guatemala,  cannot  be  con- 
sidered as  being  a  contract  which  this  court  ought  to  sanction.  The 
whole  case  being  founded  on  that,  I  do  not  think  that  I  could  give 
relief  to  the  party,  who  builds  his  case  for  relief  entirely  on  a  trans- 
action originating  in  such  a  manner ;  and  it  appears  to  me  that,  on 
that  ground,  I  must  allow  this  demurrer." 


KENNETT  v.  CHAMBERS. 

Supreme  Court  of  the  United  States,  1852. 

( 14  Howard,  38.) 

Held,  that  a  contract  to  raise  money  to  aid  the  Texans  in  their  war  with 
Mexico,  Texan  independence  not  then  being  recognized  by  the  United  States, 
was  invalid. 

The  following  is  an  extract  from  the  opinion  of  the  court,  delivered 
by  Mr,  Chief  Justice  Taxey  : — 

"To  this  bill  the  respondent  (Chambers)  demurred,  and  the  prin- 
cipal question  which  arises  on  the  demurrer  is,  whether  the  contract 
was  a  legal  and  a  valid  one,  and  such  as  can  be  enforced  by  either 
party  in  a  court  of  the  United  States.  It  appears  on  the  face  of  it, 
and  by  the  averments  of  the  appellants  in  their  bill,  that  it  was  made 
in  Cincinnati,  with  a  general  in  the  Texan  army,  who  was  then  en- 
gaged in  raising,  arming,  and  equipping  volunteers  for  Texas,  to 
carry  on  hostilities  with  Mexico  ;  and  that  one  of  the  inducements  of 


412  BELLIGEUEXTS    AND    NEUTRALS.  [PART  II. 

the  appellants,  in  entering  into  this  contract  and  advancing  the 
money,  was  to  assist  him  in  accomplishing  these  objects. 

"  The  District  Court  decided  that  the  contract  was  illegal  and 
void,  and  sustained  the  demurrer  and  dismissed  the  bill ;  and  we 
think  that  the  decision  was  right. 

"■  The  validity  of  this  contract  depends  upon  the  relation  in  which 
this  country  then  stood  to  Mexico  and  Texas  ;  and  the  duties  which 
these  relations  imposed  upon  the  government  and  citizens  of  the 
United  States. 

"  Texas  had  declared  itself  independent  a  few  months  previous  to 
this  agreement.  But  it  had  not  been  acknowledged  by  the  United 
States  ;  and  the  constituted  authorities  charged  with  our  foreign  re- 
lations, regarded  the  treaties  we  had  made  with  Mexico  as  still  in 
full  force,  and  obligatory  upon  both  nations. 

"  By  the  treat}'  of  limits,  Texas  had  been  admitted  by  our  govern- 
ment to  be  a  part  of  the  Mexican  territory ;  and  by  the  first  article 
of  the  treaty  of  amit}',  commerce,  and  navigation,  it  was  declared, 
'  that  there  should  be  a  firm,  inviolable,  and  universal  peace,  and  a 
trtie  and  sincere  friendship  between  the  United  States  of  America 
and  the  United  Mexican  States,  in  all  the  extent  of  their  possessions 
and  territories,  and  between  their  people  and  citizens  respectively, 
without  distinction  of  persons  or  place.' 

"  These  treaties,  while  they  remained  in  force,  were,  by  the  Con- 
stittition  of  the  United  States,  the  supreme  law,  and  binding  not  only 
upon  the  government,  but  upon  every  citizen.  Xo  contract  could 
lawfully  be  made  in  violation  of  their  provisions. 

"  Undoubtedly,  when  Texas  had  achieved  her  independence,  no 
previous  treaty  could  bind  this  country  to  regard  it  as  a  part  of  the 
Mexican  territory.  But  it  belonged  to  the  government,  and  not  to 
individual  citizens,  to  decide  when  that  event  had  taken  place.  And 
that  decision,  according  to  the  laws  of  nations,  depended  upon  the 
question  whether  she  had  or  had  not  a  civil  government  in  successful 
operation,  capable  of  performing  the  duties  and  fulfilling  the  obliga- 
tions of  an  independent  power.  It  depended  upon  the  state  of  the 
fact,  and  not  upon  the  right  which  was  in  contest  between  the 
parties. 

"  And  the  President,  in  his  message  to  the  Senate,  of  December 
22,  183G,  in  relation  to  the  conflict  between  Mexico  and  Texas,  which 
was  still  pending,  says  :  '  All  questions  relative  to  the  government 
of  foreign  nations,  whether  of  the  old  or  the  new  world,  have  been 
treated  by  the  United  States  as  questions  of  fact  only,  and  our  pre- 
decessors have  cautiously  abstained  fioin  deciding  upon  tliem  until 
the  clearest  evidence  was  in  their  possession,  to  enable  them  not  only 


CHAP.  IIT.]  UNITED    STATES    V.  TRUMRULL.  443 

to  decide  correctly,  but  to  shield  their  decision  from  every  uinvortliy 
imputiition.'     Senate  Journal  of  1S3(),  37,  p.  54. 

u  *  *  *  \\(,^  therefore,  hold  this  contract  to  \)Q  illegal  and 
void,  and  alflrin  tlie  decree  of  tlie  District  Court." 

Mr.  Justice  Daxikl  and  Mr.  Justice  Gkiku  dissented. 


(h)  Shijys,  3Iunitions,  and  other  Si(2'>2'>lies. 

UNITED  STATES  v.  TRUMBULL. 

U.  S.  DisTiiiCT  Court  fou  Caltfokxia,  1891. 
(48  Federal  Reporter,  99.) 

Held,  that  it  is  not  in  contravention  of  the  neutrality  laws  of  the  United  States, 
to  deliver  to  a  vessel  belonging  to  Chilean  insurgents,  in  our  waters,  arms  and 
amniunilions. 

Indictment  of  Ti'umbull  and  Burt  for  violation  of  neutrality  laws. 

The  opinion  was  delivered  by  Ross,  J. : — 

"The  indictment  in  this  case  contains  11  counts,  the  first  4  of 
which,  in  effect,  charge  that  on  the  9th  day  of  May,  1891,  at  a  certain 
designated  place  in  this  judicial  district,  near  the  island  of  San 
Clemente,  the  defendants  unlawfully  attempted  to  fit  out  and  arm, 
fitted  out  and  armed,  procured  to  be  fitted  out  and  armed,  and  were 
knowingly  concerned  in  furnishing,  fitting  out,  and  arming,  a  certain 
steamship  called  the  Itata,  whicjh  was  then  and  there  in  the  posses- 
sion and  under  the  control  of  certain  citizensof  the  republic  of  Chile, 
known  as  the  '  Congressional  Party,'  and  who  were  then  and  there, 
in  said  republic,  organized  and  banded  together  in  great  numbers  in 
armed  rebellion  and  attempted  revolution,  and  carrying  on  war 
against  the  repul)lic  of  Chile,  and  the  government  thereof,  with  which 
the  United  States,  then  and  at  the  time  of  the  finding  of  the  indict- 
ment were  at  peace,  with  intent  that  said  ship  slioidd  be  employed 
in  the  service  of  the  aforesaid  Congressional  Party,  to  cruise  or  com- 
mit hostilities  against  the  then  established  and  recognized  govern- 
ment of  Chile,  with  which  this  government  then  was  at  peace,  con- 
trary to  the  provisions  of  section  52S3  of  the  Revised  Statutes  of  the 
United  States,  which  section  is  as  follows : — 

"  '  Every  person  who,  within  the  limits  of  the  United  States,  fits  out  and  arms, 
or  attempts  to  fit  out  and  arm.  or  proc;ures  to  be  fitted  out  and  armed,  or  know- 
ingly is  concerned  in  the  furnisliing,  fitting  out,  or  armiiig  of,  any  vessel,  with 


414  EELLlGEriENTS    AND    NEUTIiALS.  [PAT.T  II. 

intent  thac  such  vessel  shall  be  employed  in  the  service  of  any  foreign  prince  or 
state,  or  of  any  colony,  district  or  people,  to  cruise  or  commit  hostilities  against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of  any  col- 
ony, district,  or  people,  with  whom  the  United  States  are  at  peace,  or  who  issues 
and  delivers  a  commission  within  the  ten-itory  or  jurisdiction  of  the  United 
States,  for  anj^  vessel,  to  the  intent  that  sJie  shall  be  so  employed,  shall  be 
deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not  more  than  ten 
thousand  dollai-s,  and  imprisoned  not  more  than  three  years.  And  every  such 
vessel,  her  tackle,  apparel,  and  furniture,  together  with  all  materials,  arms, 
ammunition,  and  stores,  which  may  have  been  procured  for  the  building  or 
equipment  thereof,  shall  be  forfeited,  one-half  to  the  use  of  the  informer,  and 
the  other  half  to  the  use  of  the  United  States.' 

"  The  next  three  counts  of  the  indictment,  in  effect,  charge  that 
the  defendants,  at  the  same  time  and  place,  increased,  unlawfully 
procured  to  be  increased,  and  were  knowingly  concerned  in  increas- 
ing, the  force  of  a  certain  ship  of  war  and  armed  steamship  called 
Itata^  whicli  arrived  at  the  port  of  San  Diego  in  this  judicial  dis- 
trict on  the  "id  day  of  May,  1891,  and  was  at  the  time  of  her  said  ar- 
rival, and  to  and  including  the  9th  day  of  May,  1891  (during  A\hicli 
time  she  remained  within  the  jurisdiction  of  the  United  States,  and 
of  this  court),  a  ship  of  war  in  the  service  of  a  certain  foreign  jjeople 
called  the  '  Congressional  Party,'  then  citizens  of  and  residing  in  the 
republic  of  Chile,  and  w'ho  were  then  and  there  banded  together  in 
large  numbers,  in  open-armed  rebellion,  and  attempted  forcible  revo- 
lution, and  making  war  against,  and  being  at  war  with  a  certain 
foreign  state,  namely,  the  republic  of  Chile,  and  the  lawful  govei'u- 
ment  thereof,  with  which  the  United  States  then,  and  at  the  finding 
of  the  mdictment,  were  at  peace,  by  adding  to  the  force  of  said  armed 
vessel  an  equipment  solely  applicable  to  war,  viz.,  by  adding  to  her 
equipment  10,000  rifles,  10,000  bayonets,  and  500,000  cartridges  there- 
for, contrary  to  the  provisions  of  Section  5"28o  of  the  Revised  Stat- 
utes of  the  United  States,  which  is  as  follows  :— 

"  '  Every  person  who,  within  the  territory  or  jurisdiction  of  the  United  States, 
increases  or  augments,  or  procures  to  be  increased  or  augmented,  or  knowingly  is 
concerned  in  increasing  or  augmenting,  the  force  of  any  ship  of  war,  cruiser,  or 
other  armed  vessel,  which,  at  the  time  of  her  arrival  within  the  United  States, 
was  a  ship  of  war,  or  cruiser,  or  armed  vessel,  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  or  belonging  to  the  subjects 
or  citizens  of  any  such  prince  or  state,  colony,  district  or  people,  the  same  being 
at  war  with  any  foreign  prince  or  state,  or  of  any  colony,  district,  or  jjeople, 
with  whom  tlie  United  States  are  at  peace,  by  adding  to  the  number  of  tlieguns 
of  such  vessel,  or  by  changing  those  on  board  of  her  for  guns  of  a  larger  caliber, 
or  by  adding  thereto  any  equipment  solely  ajjplicable  to  war.  shall  l)e  deemed 
guilty  of  a  high  jnisdemeanor,  and  shall  be  fined  not  more  than  one  thousand 
dollars,  and  imprisoned  not  more  than  one  year.' 


CHAP.  III.]  UNITED    STATES    V.  TKUMBULL.  446 

"The  Uist  four  counts  of  tlie  indictment,  in  effect,  charge  tlmt  tlie 
defendiUits,  at  the  same  time  and  place,  began,  set  on  foot,  [>rovi(led 
the  means  for,  and  prepared  the  means  for,  a  certain  military  ex[)e- 
dition  to  be  carried  on  from  thence  against  the  territory  and  domin- 
ions of  a  foreign  state,  namely,  the  republic  of  Chile, — the  United 
States,  then  and  there,  and  at  the  time  of  the  finding  of  the  indict- 
ment, being  at  peace  with  said  republic, — contrary  to  the  provisions 
of  section  5286  of  the  licvised  Statutes  of  the  United  States,  which 
is  as  follows : 

"  '  Every  person  who,  within  the  territory  of  the  United  States,  begins  or  sets 
on  foot,  or  provides  or  prepares  the  means  for,  any  military  expedition  or  enter- 
prise, to  be  carried  on  from  thence  against  the  territory  or  dominions  of  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  exceeding  three  thousand  dollars,  and  imprisoned  not  more 
than  three  years.' 

"  The  evidence  introduced  by  the  United  States  in  support  of  the 
indictment  being  concluded,  the  court  is  asked  by  the  defendants  to 
direct  the  jury  to  return  a  verdict  of  not  guilty,  on  the  ground  that 
the  evidence  introduced  on  the  part  of  the  prosecution  is  insufficient 
to  sustain  any  count  of  the  indictment.  For  the  purposes  of  the 
motion,  every  fact  that  the  evidence  tends  to  establish  must,  of 
course,  be  considered  as  proven. 

"  Briefly  stated,  these  facts  are  as  follows  :  In  January  of  this  year 
the  steamship  Itata  was  an  ordinary  merchant  vessel.  Early  in  that 
month  she  was  captured  in  the  harbor  of  Valparaiso,  Chile,  by  the 
people  designated  in  this  indictment  as  the  '  Congressional  Party,' 
and  who  were  then  engaged  in  an  effort  to  overthrow  the  then  estab- 
lished and  recognized  government  of  Chile,  of  which  Balmaceda  was 
the  head.  The  Itafxi  was  by  the  Congressional  Party  put  in  com- 
mand of  one  of  its  officers,  and  was  used  in  their  undertaking  as  a 
transport  to  convey  troops,  provisions,  and  munitions  of  war,  and 
also  as  an  hospital  ship,  and  one  in  which  to  confine  prisoners. 
Four  small  cannon  were  also  put  upon  her  decks  and  she  carried  a 
jack  and  pennant.  Some  time  prior  to  the  following  April  the  de- 
fendant Trumbull  came  to  the  United  States  as  an  agent  of  the  Con- 
gressional Party,  and  about  the  month  of  April  went  to  the  city  of 
New  York,  and  there  bought  from  one  of  the  large  mercantile  firms 
of  that  city,  dealing  in  such  matters,  5,000  rifles  and  2,000,000  car- 
tridges therefor,  witli  the  intention  and  for  the  purpose  of  sending 
them  to  the  Congressional  Party  in  Chile  for  use  in  their  efforts  to 
overthrow  the  Balmacedan  government.     The  sale  and  purchase  of 


446  BELLIGERENTS    AND    NEUTRALS.  [PART  IL 

the  arms  and  ainniuiiitioii  were  made  in  the  usual  course  of  ti-ade. 
Trumbull  caused  them  to  be  shipped  by  rail  to  San  Francisco,  and 
engaged  the  defendant  Burt  to  accompany  them,  which  he  did.  Ar- 
rangements had  been  made  by  Trumbull  with  his  principals  in  Chile, 
by  which  they  were  to  send  a  vessel  to  the  United  States  to  get  the 
arms  and  amnnniition,  and  convey  them  to  Cliile  for  the  use  of  the 
Congressional  Party  there.  The  Itata  was  disp.itched  by  that  party 
for  that  purpose,  and  was  accompanied  as  far  as  Cape  San  Lucas  by 
the  Eiiineralda,  a  war  ship  then  in  the  service  of  the  Congressional 
l*arty.  At  one  of  the  Chilean  ports  the  Itata  took  on  board  some 
soldiers,  with  their  arms,  by  one  witness  stated  to  be  about  150,  and 
by  another  to  be  about  12,  in  number. 

"  .\t  San  Lucas  the  captain  of  the  Esmeralda  took  command  of  the 
Itata,  and  the  captain  of  the  latter  was  left  there  in  command  of  the 
Esmeralda.  The  Itata  then  proceeded  to  San  Diego,  really  in  com- 
mand of  the  Esmeralda' s  captain,  but  ostensibly  in  command  of  an- 
otlier,  wlio  represented  to  the  customs  officers  at  that  port  that  slie 
w^as  an  ordinary  merchantman,  and  was  bound  to  some  poi't  on  the 
northern  coast.  Before  coming  into  the  port  of  San  Diego,  or  into 
the  waters  of  the  L'nited  States,  the  Itata  hauled  down  her  jack  and 
pennant,  the  cannon  theretofore  carried  on  her  decks  were  removed 
and  stowed  in  her  hold,  as  were  also  the  arms  of  the  soldiers  she 
carried ;  and  their  uniforms,  as  well  as  those  of  the  officers,  were 
removed,  and  all  appeared  in  civilian's  dress.  At  that  port  she  laid 
in  stores  of  coal  and  provisions,  all  of  wdiicli  were  bought  in  the 
open  market,  and  some  of  which  were  marked  'Esmeralda.' 

"  Meanwhile  Trumbull  had  chartered  a  schooner,  called  the  Hohert 
and  JImnie,  in  San  Francisco  to  take  the  arms  and  ammunition  from 
there  to  a  point  in  this  judicial  district,  then  expected  to  be  near  the 
island  of  Catalina,  where  she  could  meet  the  Itata,  and  deliver  them 
on  board  of  her  to  be  conveyed  to  Chile  for  the  purposes  already 
stated.  The  schooner  Bobert  and  Minnie  accordingly  took  on  board 
the  arms  and  annnunition  at  the  port  of  San  Francisco,  and,  in  charge 
of  the  defendant  Burt,  proceeded  to  the  neighborhood  of  Catalina 
Island,  where  she  expected  to  meet  the  Itata.  In  the  meantime  the 
suspicion  of  some  of  the  officers  of  the  Ignited  States  that  the  neu- 
trality laws  were  being  violated  was  aroused,  and  the  marshal  of 
this  district  was  directed  by  the  attorney-general  to  detain  the  Itata, 
if  such  was  found  to  be  the  case;  and,  acting  upon  those  and  certain 
instructions  from  the  district  attorney  of  the  judicial  district,  he 
went  on  board  the  ship  at  San  Diego,  and  put  a  keeper  in  charge  of 
her,  and  then  went  in  search  of  the  Robert  and  3Iinnie,  which  he  did 
not  find  in  the  waters  of  the  United  States.    Communication  was, 


CHAP,  in.]  UNITED    STATES    V.  TRUMBULL.  447 

however,  had  between  the  Itata  and  the  schooner  and  a  point  near 
San  Clemente  Ishmd  was  fixed  upon  as  the  place  of  meeting  for  the 
purpose  of  transferring  the  arms  and  ammunition  from  the  scliooner 
to  the  sliip.  Accordingly,  the  Itata,  on  the  Gth  of  May,  1891,  with- 
out obtaining  clearance  papers,  and  against  the  protest  of  the  person 
left  on  board  and  in  charge  of  her  by  the  marshal,  weighed  anchor, 
and  steamed  out  of  the  harbor  of  San  Diego,  Avith  him  on  board,  to 
meet  the  liohert  and  Minnie^  and  receive  the  arms  and  ammunition. 
The  marshal's  keeper  was,  however,  put  ashoi'e  at  I'oint  Ballast, 
before  leaving  the  harbor.  While  steaming  out  of  it,  one  or  more  of 
the  Itata's  cannon  were  brought  on  deck,  and  some  of  the  soldiers 
on  board  of  her  appeared  in  uniform.  On  the  0th  of  May,  the  Itata 
and  Ilohert  andMinnie  came  together  about  a  mile  and  a  half  south- 
erly of  San  Clemente  Island,  and  there  the  arms  and  annnunition  in 
question  were  taken  from  the  schooner,  and  put  on  board  the  ship 
in  original  packages,  and  the  latter  at  once  left  with  them  for  Chile. 

"  No  evidence  was  introduced  tending  to  show  that  the  Congres- 
sional Party  ever  received  any  recognition  of  any  character  from  the 
government  of  the  United  States  until  September  4th,  wlien  it  was 
recognized  as  the  established  and  only  government  of  Chile. 

"  But  since  the  argument  and  submission  of  the  motion,  the  counsel 
for  the  United  States  have  called  the  attention  of  the  court  to  the 
following  facts  furnished  by  the  respective  depai-tments,  to- wit :  On 
March  4th,  the  secretary  of  the  navy  cabled  Admiral  ]\fcCann  '  to 
proceed  to  Valparaiso,  and  observe  strict  neutrality,  and  take  no 
part  in  troubles  between  parties  further  than  to  protect  American 
interests.'  On  March  2Gth,  the  secretary  of  the  navy  cabled  Admiral 
Brown,  who  had  superseded  Admiral  McCann,  'to  abstain  from  pro- 
ceedings in  nature  of  assistance  to  either,  that  is,  the  Balmaceda  or 
Congressional  Party ;  that  the  ships  of  the  latter  were  not  to  be 
treated  as  piratical,  so  long  as  they  waged  war  only  against  the  Bal- 
raaceda  government.'  On  April  25th,  Secretary  of  State  Blaine 
cabled  the  American  minister,  '  Yoti  can  act  as  mediator  with  Bra- 
zilian minister  and  French  charge  <Taffaires^  On  May  5th,  ^Minister 
Eagan  cabled  this  government,  '  Government  of  Cliile  and  revolu- 
tionists have  accepted  mediation  of  the  United  States,  I>razil,  and 
France  most  cordially ;  those  of  England  and  Germany  declined.' 
On  May  7th,  Acting  Secretary  of  State  Wharton  acknowledged  the 
dispatch  of  Minister  Eagan,  and  '  expressed  hope  that  through  com- 
bined efforts  of  the  governments  in  question,  the  strife  which  has 
been  going  on  in  Chile  may  be  speedily  and  happily  terminated.'  On 
May  14th  Acting  Secretary  of  State  Wharton  cabled  ^linister  Eagan 
that  'French  minister  reports  threats  to  shoot  the  insurgent  envoys 


448  BELLIGERENTS    AND    NEUTRALS.  [PART  II. 

1)3'  Balmaceda,'  and  directed  that  they  should  have  ordinary  treat- 
ment under  flag  of  truce. 

"  The  foregohig  are  the  facts  of  the  case  as  now  presented,  and  the 
question  the  court  is  called  upon  to  decide  is  %Aiiether  they  are  suffi- 
cient to  justify  a  verdict  against  the  defendants  upon  any  count  of 
the  indictment.  The  counsel  for  the  United  States  concede  that  they 
are  insufheient  to  justify  a  verdict  against  the  defendants  under 
either  of  the  counts  that  are  based  on  section  5285  of  the  Revised 
Statutes.  It  seems  to  me  the  same  thing  is  equally  true  in  respect 
to  those  counts  that  are  based  on  section  5286.  The  very  terms  of 
that  statute  imply  that  the  military  expeditions  or  enterprises  there- 
by prohibited  are  such  as  originate  within  the  limits  of  the  United 
States,  and  are  to  be  carried  on  from  this  country.  '  Every  person 
who,  within  the  limits  or  jurisdiction  of  the  United  States,  begins  or 
sets  on  foot,  or  provides  or  prepares  the  means  for,  any  military  ex- 
pedition or  enterprises,  to  be  carried  on  from  thence,' — that  is  to  saj-, 
from  the  United  States, — is  the  language  of  the  statute. 

"If  the  evidence  shows  that  in  this  case  there  ever  was  any  mili- 
tar}'  expedition  begun  or  set  on  foot,  or  provided  or  prepared  for, 
within  the  sense  of  this  statute,  it  was  begun,  set  on  foot,  provided 
and  prepared  for  in  Chile,  and  was  to  be  carried  on  from  Chile,  and 
not  from  the  United  States.  But  I  think  it  perfectly  clear  that  the 
sending  of  a  ship  from  Chile  to  the  United  States,  to  take  on  board 
arms  and  amnninition  purchased  in  this  country,  and  carry  them 
back  to  Chile,  is  not  the  beginning,  setting  on  foot,  providing  or  pre- 
paring the  means  for  any  military  expedition  or  enterprise,  within 
the  meaning  of  section  5286  of  the  Revised  Statutes. 

"The  cases  of  The  Mary  A.  Hogan,  18  Fed.  Rep.,  529;  U.  S.  v. 
T'loo  Hundred  and  Fourteen  Boxes  of  Arms,  etc.,  20  Fed.  Rep.,  50 ; 
and  U.  S.  v.  Band,  17  Fed.  Rep.,  142,  cited  by  counsel  for  the  United 
States  in  support  of  their  position  in  respect  to  this  point,  do  not  at 
all  support  it.  In  each  of  those  cases  there  was  a  military  expedi- 
tion, and  it  was  organized  within,  started  from,  and  was  to  be  car- 
ried on  from  the  United  States.  The  facts  of  those  cases  are  wholly 
different  from  the  facts  of  the  present  case. 

"  There  remains  for  consideration  the  fotir  counts  of  the  indict- 
ment that  are  based  on  section  5283  of  the  Revised  Statutes.  The 
first  of  these,  as  has  been  seen,  charges  that  the  defendants,  on  the 
9th  of  May  last,  at  a  certain  designated  place  within  this  judicial 
district,  unlawfully  fitted  out  and  armed  a  certain  steamship  called 
the  Itata,  which  was  then  and  there  in  the  possession  and  under  the 
control  of  certain  citizens  of  the  republic  of  Chile,  kno\vn  as  the 
'  Congressional  Party,'  and  wixo  w  ere  then  and  there,  in  said  repub- 


CHAP.  Jll.J  UNITED    STATES    V.  TRUMBULL.  449 

lie,  organized  and  banded  together  in  great  nunihers  in  armed  rebel- 
lion and  attempted  revolution,  and  carrying  on  Avar  against  the 
republic  of  Chile  and  tlie  government  thereof,  with  which  the  United 
States  then,  and  at  the  time  of  the  finding  of  the  indictment,  were  at 
peace,  with  intent  that  said  ship  should  be  employed  in  the  service 
of  the  aforesaid  Congressional  Party,  to  cruise  or  connnit  hostilities 
against  the  then  established  and  recognized  government  of  Chile, 
with  which  this  government  then  was  at  peace.  The  second  count 
charges  that  the  defendants,  at  the  same  time  and  place,  attempted 
to  do  the  same  thing;  the  third  count  charges  tluit,  at  the  same  time 
and  place,  tliey  unlawfully  procured  the  same  thing  to  be  done;  and 
the  fourth,  that,  at  the  same  time  and  place,  defendants  were  '  un- 
lawfully and  knowingly  concerned  in  the  furnishing,  fitting  out, 
and  arming  of  the  Itata^  with  intent,  etc. 

"  It  is  contended  on  behalf  of  the  defendants  that  section  528.3  has 
no  application  to  this  case,  for  the  reason  that  the  people  designated 
in  the  indictment  as  the  '  Congressional  Party '  do  not  constitute  a 
people,  within  the  meaning  of  that  section.  It  is  beyond  question 
that  the  status  of  the  people  composing  the  Congressional  Party  at 
the  time  of  the  commission  of  the  alleged  offense,  is  to  be  regarded 
by  the  court  as  it  was  then  regarded  by  the  political  or  executive 
department  of  the  United  States.  This  doctrine  is  firmly  estab- 
lished. Gehton  v.  Hoyf,  3  Wheat.,  24G,  324;  U.  S.  v.  Palmer,  Id., 
GIG,  G35  ;  Kcnnett  v.  Chambers,  14  How.,  38  ;  Whart.  Int.  Law  Dig., 
pp.  551,  552,  and  cases  there  cited. 

"  If  the  dispatches  from  the  secretary  of  the  navy,  the  secretary  of 
state,  and  acting  secretary  of  state,  already  referred  to,  are  to  be 
considered  as  indicating  the  light  in  Avhich  the  people  composing  the 
Congressional  Party  of  Chile  were  regarded  by  the  executive  depart- 
ment of  this  government  prior  to  their  recognition,  on  the  4th  of 
September,  the  position  of  the  United  States  towards  them  seems  to 
have  been  similar  to  that  taken  by  the  United  States  towards  the 
insurgents  against  Hayti  in  18G9.  That  position  was  thus  stated  by 
Mr.  Fish,  then  secretary  of  state,  in  a  letter  dated  September  14, 
1869:— 

" '  (1)  That  we  do  not  dispute  the  right  of  the  government  of 
Hayti  to  treat  the  officers  and  crew  of  the  Qaaher  City  and  Florida 
(vessels  in  the  service  of  the  insurgents  against  Hayti)  as  pirates 
for  all  intents  and  purposes.  How  they  are  to  be  regarded  by  their 
own  legitimate  government  is  a  question  of  municipal  law,  into 
which  we  have  no  occasion,  if  we  had  the  right,  to  enter. 

"'(2)  That  this  government  is  not  aware  of  any  reason  which 
would  require  or  justify  it  in  looking  upon  the  vessel  named  in  a 
29 


450  BELLIGERENTS   AND    NEUTRALS.  [PAKT  11. 

different  light  from  any  other  vessel  employed  in  the  service  of  the 
insurgents. 

"'(3)  That,  regarding- them  simj)l3Mis  armed  cruisers  of  tlie  in- 
surgents, not  yet  acknowledged  by  this  government  to  have  obtained 
belligerent  rights,  it  is  competent  to  the  United  States  to  deny  and 
resist  the  exercises  by  those  vessels,  or  any  other  agents  of  the 
rebellion,  of  the  privileges  which  attend  maritime  war,  in  respect  to 
our  citizens  or  their  property  entitled  to  their  protection.  We  may 
or  may  not,  at  option,  as  justice  or  policy  may  require,  treat  them  as 
pirates  in  the  absolute  and  unqualified  sense,  or  we  may,  as  the  cir- 
cumstances of  any  actual  case  shall  suggest,  waive  the  extreme 
right,  and  recognize,  where  facts  warrant  it,  an  actual  intent,  on  the 
part  of  the  individual  offenders,  not  to  depredate  in  a  criminal  sense 
and  for  private  gain,  but  to  capture  and  destroy  jure  belli.  It  is 
sufficient  for  the  present  purpose,  that  the  United  States  will  not 
admit  anj'^  commission  or  authority  proceeding  from  rebels  as  a  jus- 
tification or  excuse  for  injury  to  persons  or  property  entitled  to  the 
protection  of  this  government.  They  Avill  not  tolerate  the  search  or 
stopping,  by  cruisers  in  the  rebel  service,  of  vessels  of  the  United 
States,  nor  any  other  act  which  is  only  privileged  by  recognized  bel- 
ligerency. 

"  '  (4)  While  asserting  the  right  to  capture  and  destroy  the  ves- 
sels in  question,  and  others  of  similar  character,  if  any  aggression 
upon  persons  or  property  entitled  to  the  protection  of  this  govern- 
ment shall  recommend  such  action,  we  cannot  admit  the  existence 
of  any  obligation  to  do  so  in  the  interest  of  Hayti  or  of  the  general 
security  of  commerce.'     3  Whart.  Int.  Law  Dig.,  pp.  465,  466. 

"  Does  section  5283  of  the  Kevised  Statutes  apply  to  any  people 
whom  it  is  optional  with  the  United  States  to  treat  as  pirates  ?  That 
section  is  found  in  the  chapter  headed  'Neutrality,'  and  it  was  car- 
ried into  tlie  IJevised  Statutes,  and  was  originally  enacted  in  fur- 
therance of  the  obligations  of  the  nation  as  a  neutral.  The  very 
idea  of  neutrality  imports  that  the  neutral  will  treat  each  contend- 
ing party  alike;  that  it  will  accord  no  right  or  privilege  to  one  that 
it  withholds  from  the  other,  and  will  withhold  none  from  one  that  it 
accords  to  the  other.  In  the  case  of  U.  S.  v.  Quina/,  6  Pet.,  445,  the 
Supreme  Court  of  the  United  States  said  that  the  word  'people'  in 
the  3d  section  of  the  act  of  April  20,  1818  (and  from  that  carried 
into  the  Revised  Statutes  as  section  5283),  '  is  one  of  the  denomina- 
tions applied  by  the  act  of  Congress  to  a  foreign  power.'  This  can 
hardly  mean  an  association  of  people  in  no  way  recognized  by  the 
United  States,  or  by  the  government  against  which  they  are  rebel- 
ling, whose  rebellion  has  not  attained  the  dignity  of  war,  and  who 


CHAr,  III.]  UNITED   STATES   V.  TRUMBULL.  451 

may,  at  the  option  of  the  United  States,  be  treated  by  them  as 
pirates.  Prior  to  the  passage  of  the  act  of  April  :20,  1818,  the 
Supreme  Court  of  the  United  States,  in  the  case  of  deUton  v.  JToyt^ 
3  Wheat.,  24G,  speaking  through  ]Mr.  Justice  Stouy,  Iield  that  sec- 
tion 3  of  the  act  of  1794,  prohibiting  tlie  fitting  out  any  sliip,  etc., 
for  the  service  of  any  foreign  prince  or  state,  to  cruise  against  the 
subjects,  etc.,  of  any  foreign  prince  or  state,  with  which  the  United 
States  were  at  peace,  did  not  apply  to  any  new  government,  unless 
it  had  been  recognized  by  the  United  States  or  by  the  government 
of  the  country  to  which  such  new  country  belonged;  and  that  a  plea 
which  set  up  a  forfeiture  under  that  act,  in  fitting  out  a  ship  to 
cruise  against  such  new  state,  must  aver  such  recognition,  or  it 
is  bad. 

"Congress,  in  passing  the  subsequent  act  of  April  20,  1818,  by 
which  the  provision  referred  to  of  the  act  of  1794  was,  in  substance,  re- 
enacted,  must  be  presumed  to  have  known  the  construction  that  had 
been  theretofore  put  by  tlie  Supreme  Court  upon  the  words  '  prince  or 
state'  in  the  act  of  1794,  and  with  that  knowledge,  in  passing  the 
act  of  1818,  inserted  in  the  same  clause  the  words  'colony,  district, 
or  people.' 

"  This  was  done,  according  to  Dana's  "Wheat.  Int.  Law,  §  439,  note 
215,  and  Wharton's  Int.  Law  Dig.,  j).  561,  upon  the  suggestion  of  the 
Spanish  minister  that  the  South  American  provinces,  then  in  revolt, 
and  not  recognized  as  independent,  might  not  be  included  in  the 
word  '  state.'  But  in  every  one  of  those  instances  the  United  States 
had  acknowledged  the  existence  of  a  state  of  war,  and,  as  a  conse- 
quence, the  belligerent  rights  of  the  provinces.  The  Ambrose  Li<jht, 
25  Fed.  Rep.,  414,  and  references  there  made. 

"  It  will  be  observed  that  the  Supreme  Court,  in  the  case  of  GeU- 
ton  V.  Iloyt  did  not  sa}''  that  the  independence  of  the  new  govern- 
ment must  have  been  recognized  by  the  United  States  to  make  the 
statute  of  which  it  was  speaking  applicable.  There  are  different 
kinds  or  degrees  of  recognition,  but  can  it  be  properlj'  said  that,  in 
passing  an  act  in  furtherance  of  the  obligations  of  the  nation  as  a 
neutral.  Congress  was  legislating  with  reference  to  a  people  not  in 
any  way  recognized  by  the  government  of  the  L^nited  States,  and 
whom  it  might,  at  its  option,  treat  as  pirates  ?  'To  fall  within  the 
statute,'  said  Judge  Browx,  in  the  case  of  The  Carondelet,  37  Fed. 
Rep.,  800,  '  the  vessel  must  be  intended  to  be  employed  in  the  service 
of  one  foreign  prince,  state,  colony,  district,  or  people,  to  cruise  or 
commit  hostilities  against  the  subjects,  citizens,  or  property  of  an- 
other, with  whom  the  Ignited  States  are  at  peace.  The  United  States 
can  hardly  be  said  to  be  at  peace,  in  the  sense  of  the  statute,  with  a 


452  BELLIGEKENTS    AND    NEUTIIALS.  [PAIIT  II. 

faction  Miiicli  the}'  are  unwilling  to  recognize  as  a  government ;  nor 
could  the  cruising  or  committing  of  hostilities  against  such  a  mere 
faction  well  he  said  to  he  committing  hostilities  against  the  '  suh- 
jects,  citizens,  or  property  of  a  district  or  people,  Avithin  the  meaning 
of  the  statute.  So  on  the  other  hand,  a  vessel,  in  entering  the  serv- 
ice of  tlie  opposite  faction  of  Ilippolyte,  could  hardly  l)e  said  to 
enter  the  service  of  a  foreign  '})rince  or  state,  or  of  a  colony,  district 
or  people,'  unless  our  government  liad  recognized  Ilippolyte's  faction 
as  at  least  constituting  a  belligerent,  which  it  does  not  appear  to 
have  done.'  Attorney-General  Hoar,  however,  in  a  letter  to  Mr. 
Fish,  secretary  of  state,  of  date  December  16,  1809  (13  Op.  Atty. 
Gen.  U.  S.,  177),  said  : — 

" '  Undoubtedly  the  ordinary  application  of  the  statute  [in  ques- 
tion] is  to  cases  where  the  United  States  intends  to  maintain  its 
neutralit}'^  in  M'ars  between  two  other  nations,  or  where  both  parties 
to  a  contest  have  been  recognized  as  belligerents  ;  that  is,  as  having 
a  suflBciently  organized  political  existence  to  enable  them  to  carry  on 
war.  But  the  statute  is  not  confined  in  its  terms,  nor,  as  it  seems  to 
me,  in  its  scope  and  proper  effect,  to  such  cases.  Under  it,  any  per- 
sons who  are  insurgents,  or  engaged  in  M'hat  would  be  regarded 
under  our  law  as  levying  war  against  the  sovereign  power  of  the 
nation,  though  few  in  number  and  occupying  however  small  a 
territory,  might  procure  the  fitting  out  and  arming  of  vessels  with 
intent  to  commit  hostilities  against  a  nation  with  which  we  were  at 
peace,  and  with  intent  that  they  should  be  employed  in  the  service 
of  a  colony,  district,  or  people,  not  waging  a  recognized  war.' 

"  The  attention  of  Attorney-General  Hoar  does  not  appear  to  have 
been  attracted  to  the  decisions  of  the  Supreme  Court  and  other  cases 
above  cited,  nor  are  any  authorities  cited  in  support  of  the  views 
expressed  by  him.  In  my  opinion,  it  is,  to  say  the  least,  extremely 
doubtful  Avhether  section  5283  of  the  Revised  Statutes  applies  to  the 
present  case.  But,  assuming  that  it  does,  the  evidence  does  not  sus- 
tain the  charges  based  upon  it.  It  does  not  show,  or  tend  to  show, 
that  the  defendants,  or  either  of  them,  attempted  to  do,  or  procui-ed 
to  be  done,  or  were  concerned  in  doing,  anything  that  they  did  not 
in  fact  do. 

"  What  the  evidence  shows  that  they  did  do  has  already  been 
stated.  If  none  of  those  acts  constituted  the  arming,  fitting  out,  or 
furnishing  the  Itat<i  with  the  intent  that  she  should  be  emi)loyed  to 
cruise  or  commit  hostilities  against  the  then  established  goverinnent 
of  Chile,  it  necessarily  follows  tliat  the  prosecution  has  failed  to 
prove  the  case  alleged  against  the  defendants,  and  the  motion  made 
on  their  behalf  should  be  granted.     One  of  the  counsel  for  the  United 


CHAP.  III.]  UNITED    STATES    V.  TKr.MIULL.  453 

States  conceded,  on  the  ar,o-uinent,  that  the  evidence  is  insufficient  to 
shovv^  tliat  tlie  defendants  fitted  out  and  armed  the  Itata,  but  he  con- 
tended strenuously  that  it  is  sufficient  to  show  that  they  were  know- 
ingly concerned  in  '  furnishing  '  her.  Of  course,  if  he  is  right  in  the 
concession,  it  results  tliat  the  first  count  is  not  estal)lished  l>y  pi'oof ; 
and,  since  the  evidence  does  not  tend  to  show  that  the  defendants, 
or  either  of  them,  attempted  to  do,  or  procured  to  l)e  done,  anything 
they  did  not  in  fact  do,  the  second  and  third  counts  would  also  fall. 
If,  as  is  thus  conceded,  and  as  seems  to  me  to  be  clear,  the  putting 
on  board  the  Itatd  of  the  arms  and  ammunition,  under  the  circum- 
stances and  for  the  purposes  stated,  did  not  constitute  the  fitting  out 
and  arming  of  that  vessel,  it  is  difficult  to  understand  how  the  same 
acts,  committed  under  the  same  circumstances  and  for  the  same  [)ur- 
poses,  constituted  the  'furnishing'  of  her.  There  is  nothing  in  tiio 
evidence  tending  to  show  that  any  of  the  arms  or  ammunition  were 
intended  for  use  by  the  Itata.  On  the  contrary,  the  whole  case 
sliows  that  the  defendants  caused  them  to  be  put  on  board  of  her 
with  the  intention  that  she  should  transport  them  to  Chile,  for  the 
use  of  the  insurrecting  party  there. 

"  Tliis  does  not  constitute  the  fitting  out,  arming,  or  furnishing  of 
the  Itata^  with  intent  that  she  should  h^  employed  to  cruise  or  com- 
mit hostilities  in  the  service  of  the  insurrectionary  party  against  the 
then  government  of  Chile.  In  principle,  the  case  is,  I  think,  mucii 
like  that  of  Tlie  Florida,  decided  by  Judge  Blatchford  in  1871,  and 
reported  in  4  Ben.,  452.  This  was  a  suit  against  the  Florida  for  an 
alleged  forfeiture  incurred  under  the  third  section  of  the  act  of  April 
20,  1818,  now,  in  substance,  section  5283  of  the  Revised  Statutes. 

"  The  court  said : — 

"  'Admitting  that  persons  acting  as  agents  of  the  insurrectionary 
party  in  Cuba  were  the  real  owners  of  the  vessel  and  her  cargo  of 
arms  and  munitions  of  war,  and  that  the  transaction  of  the  borrow- 
ing, by  Darr  from  Castillo,  of  the  money  wherewith  the  vessel  and 
her  cargo  were  purchased,  was  a  sham,  and  that  the  vessel  was  to 
proceed  with  her  cargo  to  Vera  Cruz,  and  there  vessel  and  cargo 
were  to  be  transferred  by  Darr,  their  nominal  owner,  to  persons  act- 
ing for  the  insurrectionary  party  in  Cuba,  and  that  thence  tlie  vessel 
was  to  take  the  cargo  to  sonie  point  off  the  coast  of  Cuba,  and  land 
it  on  the  shore  by  the  use  of  rafts  made  out  of  the  lumber  on  board, 
towed  by  the  steam-launch  on  board,  through  shallow  water,  to  the 
shore,  and  that  Darr  and  such  real  owners  of  the  vessel  and  cargo 
had  an  intent  to  do  all  this  in  fitting  out  tlie  vessel,  and  putting  her 
cargo  on  board,  still  a  violation  of  the  third  section  of  the  act  1818 
is  not  thereby   made   out,     A   vessel  fitted    out   wiih     intent  to 


454  "  BELLIGEltENTS    AND   NEUTllALS.  [PAKT  II. 

do  this,  is  not  fitted  out  ^vith  intent  to  cruise  or  commit  hos- 
tilities, within  the  sense  of  tliut  section.  If  so,  then  every  vessel 
fitted  out  to  run  a  blockade,  with  a  cargo  of  munitions  of  war, 
is  necessaril}'  fitted  out,  within  tlie  sense  of  that  section,  to  commit 
hostilities  against  the  country  whose  forces  have  instituted  the 
blockade.  *  *  *  There  is  no  satisfactory  evidence  that  the  vessel 
was  furnished  or  fitted  out  or  armed,  or  attempted  to  be  furnished 
or  fitted  out  or  armed,  with  intent  that  she  should  be  employed 
to  cruise  or  commit  hostilities,  in  the  sense  of  the  third  section 
of  the  act,  m  the  service  of  the  insurrectionary  party  in  Cuba, 
against  the  government  of  Spain.  There  is  no  evidence  that  she  wa3 
intended  to  do  anything  more  than  transport  her  cargo  to  the  coast 
of  Cuba,  and  cause  it  to  be  landed  there  on  rafts,  by  the  aid  of  the 
launch  on  board.  To  do  this  was  no  violation  of  the  third  section  of 
the  act,  which  is  the  one  on  which  the  libel  is  founded.' 

"  In  a  letter  from  Attorney-General  Speed  to  3Ir.  Seward,  then 
secretary  of  state,  he  said  : — 

" '  I  know  of  no  law  or  regulation  which  forbids  any  person  or 
government,  whether  the  political  designation  be  real  or  assumed, 
from  purchasing  arms  from  the  citizens  of  the  United  States,  and 
shipping  them  at  the  risk  of  the  purchaser.'  11  Op.  Atty.-Gen. 
U.  S.,  452. 

'•  Tlie  fact  that  secrecy  and  deception  were  resorted  to  in  the  pres- 
ent case,  as  was  also  done  in  the  case  of  the  Florida^  cannot  bring  it 
within  the  purview  of  the  statute,  if  not  otherwise  within  it ;  nor 
can  the  circumstance  that  the  Itata^  in  leaving  the  port  of  San  Diego 
in  the  manner  disclosed  by  the  evidence,  violated  other  provisions  of 
law.  The  case  alleged  must,  of  course,  be  proved ;  otherwise  the 
defendants  are  entitled  to  a  verdict  of  not  guilty. 

"  Entertaining  the  views  above  expressed,  it  becomes  unnecessary 
to  decide  what  effect,  if  any,  should  otherwise  be  given  in  this  case 
to  the  recognition  by  the  United  Stfites,  on  the  4th  of  September,  of 
the  government  established  by  the  Congressional  Party,  or  to  deter- 
mine other  questions  raised,  all  of  which  have  been  elaborately  and 
very  ably  argued  by  counsel. 

"  The  evidence  introduced  on  behalf  of  the  prosecution  being,  in 
my  opinion,  insufficient  to  warrant  a  conviction  under  either  count 
of  the  indictments,  the  motion  made  on  belialf  of  the  defendants  is 
granted,  and  the  jury  are  instructed  to  find  a  verdict  of  not  guilty."  * 

1  This  decision  has  since  been  aflfirmed  by  the  Circuit  Court  for  California. 


CHAP.  III.j  THE   "  SALVxUiOK."  455 


THE  "SALVADOR" 

Peity  Council,  1870. 

(3  Privy  Council  Rep.,  218.) 

Held,  that  a  British  vessel  fitted  out  in  aid  of  insurgents  in  the  island  of  Cuba, 
was  Uable  to  forfeiture  under  the  7th  section  of  the  Foreign  Enlistment  Act 
of  1819. 

The  Proclamation  of  the  24th  of  March,  1869,  stated  that  an  in- 
surrection against  the  Government  of  Spain  was  reported  to  have 
taken  place,  and  to  be  then  existing  in  the  Island  of  Cuba,  and  upon 
the  fact  of  that  I'eport  being  well-founded,  and  a  state  of  insurrec- 
tion actually  existing  in  Cuba,  the  Proclamation  against  Her  3Iaj- 
esty's  subjects  in  the  Bahamas  enlisting  or  engaging  in  a  Foreign 
service  in  aid  of  such  insurrection  was  legally  and  properly  issued. 

All  the  witnesses  show,  and  the  learned  Judge  of  the  Vice- Ad- 
miralty Court  below  himself  admits,  that  there  was  a  very  serious 
insurrection  or  revolt  in  the  Island  of  Cuba  against  the  Spanish 
Government.  But  the  learned  Judge,  though  apparently  satisfied 
that  there  was  a  state  of  insurrection  in  Cuba,  hesitates  to  apply 
the  penal  section  of  the  "  Foreign  Enlistment  Act,  because  he  cannot 
find  that  such  insurrection  is  in  favor  of  any  persons  assuming  the 
powers  of  Government,  or  pretended  Government,  in  the  Island  of 
Cuba ;  though  the  nature  and  object  of  the  expedition  for  whicli  the 
Saloador  was  equipped  and  fitted-out  is  from  the  evidence  proved 
to  have  been  in  aid  of  this  insurrection,  and  she,  being  a  British 
vessel,  was  engaged  in  and  for  a  military  expedition,  for  the  purpose 
of  attacking  the  dominions  of  a  friendly  Power,  yet  the  Judge  of  the 
Vice-Admiralty  Court  refused  to  declare  the  vessel  liable  to  for- 
feiture within  the  meaning  of  the  7th  section  of  the  Act. 

Their  Lordships'  judgment  was  delivered  by  Lord  Catrxs: — 

"  This  is  an  appeal  from  the  decision  of  the  Vice- Admiralty  Court 
of  the  Bahamas,  upon  an  information  filed  on  behalf  of  the  Crown 
before  that  Court  under  the  Foreign  Enlistment  Act,  with  regard 
to  the  ship  Salvador,  and  seeking  her  confiscation. 

"The  section  in  the  Foreign  Enlistment  Act  which  has  to  be 
considered  is  the  seventh.  It  has  frequently  been  remarked,  that 
the  interpretation  of  that  section  is  attended  with  some  difficult}', 
mainly  owing  to  the  great  quantity  of  words  which  are  used  in  the 


4o6  BELLIGI<:HENTS    AND    NEUTRALS.  [I'AltT  H. 

clause ;  but  endeavoring"  for  the  moment  to  set  aside  the  verbiage  of 
the  section,  it  is  obvious  tliat,  in  order  to  constitute  an  offence  under 
it,  five  propositions  must  be  establislied.  In  tbe  first  place,  the  ship, 
which  in  other  respects  is  found  to  be  acting  within  the  meaning  of 
the  section,  must  be  acting  without  the  leave  and  license  of  the 
Sovereign  of  this  Country.  'J'hat  is  the  first  element  of  the  charge 
under  the  section.  The  second  is  this,  the  ship  must  be  equipped, 
furnished,  fitted-out  or  armed,  or  there  jnust  be  a  procuring,  or  an 
attempt  or  endeavor  to  equip,  furnish,  fit-out,  or  arm  tlie  ship.  The 
third  is,  that  the  equipping,  furnishing,  fitting-out,  or  arming  of  the 
siiip  must  be  done  with  the  intent  or  in  order  that  the  ship  or  vessel 
shall  be  employed  in  the  service  of  some  '  foreign  Prince,  State,  or 
Potentate,  or  some  foreign  colony,  province,  or  part  of  any  province 
or  people,  or  of  any  person  or  persons  exercising,  or  assuming  to  ex- 
ercise, any  powers  of  government  in  or  over  any  foreign  State,  colony, 
province,  or  part  of  any  province  or  people.' 

"Then  the  fourth  element  in  the  se3tion  is  this,  there  must  be  an 
intent  to  enq)l()y  the  ship  in  one  of  two  capacities  either  'as  a  trans- 
port or  storeship,  against  any  Prince,  State,  or  Potentate,'  or  '  with 
intent  to  cruise  or  commit  hostilities  against  any  Prince,  State,  or 
Potentate.'  T  pause  for  the  purpose  of  observing  that  the  words  are 
not  very  happily  chosen  which  i-epresent  her  as  being  employed  '  as 
a  transport  or  storeship  against  any  Prince,  State,  or  Potentate ; '  but 
it  is  clear,  open  as  the  words  may  be  to  criticism,  that  the  intent  is, 
that  the  ship  should  be  employed  in  one  of  the  two  capacities  I  have 
mentioned,  and  not  only  so,  but  employed  '  against,'  that  is  in  the 
way  of  aggression  against,  some  foreign  Prince,  Potentate,  or  State. 
This  should  be  done,  as  T  have  already  said,  against  some  Prince, 
State,  or  Potentate,  'or  against  tlie  subjects  or  citizens  of  any  Pi'ince, 
State,  or  Potentate,  or  against  the  persons  exercising  or  assuming  to 
exercise  the  powers  of  goverinucnt  in  any  colony,  province,  or  part 
of  any  province  or  country,  or  against  the  inhabitants  of  any  foreign 
colony,  province,  or  part  of  any  province  or  country.'  .And  the  fifth 
element  is,  that  this  foreign  State  or  Potentate,  and  so  on,  should  be 
one  with  whom  the  Sovereign  of  this  country  should  not  then  be 
at  war. 

"Those  are  the  five  elements  which  go  to  make  up  the  whole 
charge  under  the  7th  section. 

"  Xow,  with  regard  to  the  first  Avhich  I  have  mentioned,  the  ab- 
sence of  leave  and  licence  on  the  part  of  Iler  Majesty,  no  question 
arises. 

"  With  regard  to  tlie  second,  namely,  that  there  nnist  l)e  an  equip- 
ping, furnishing,  fitting-up,  or  arming,  or  a  procuring,  or  an  attempt 


CHAP.  III. J  THE    "  SALVADOR."  457 

to  do  SO,  no  question  can  arise  in  tliis  case  when  we  read  the  evidence 
of  Mr.  Duniaresq,  the  Keceiver-Genoi-al  and  Treasurer  of  the  Island, 
who  states  the  condition  in  which  he  found  the  sliip,  and  tlie  pre[)- 
arations  made  on  boai'd  of  lier,  whittli  seem  to  tlieir  Lordsliips  to 
amount  to  a  fitting-out  or  arming-,  or  an  attempt  to  do  so,  witliin  tlie 
meaning  of  tliis  section.  The  learned  Judge  of  the  Vice- Admiralty 
Court  seems  to  have  entertained  no  doubt  himself  upon  this  part  of 
the  case. 

"  I  pass  over  the  third  element  which  I  mentioned,  for  the  moment, 
in  order  to  say  that  upon  the  fourth  and  fifth  heads  to  wdiich  I  have 
referred  there  can  also  be  no  doubt  entertained,  as  it  seems  to  their 
Lordships  ;  and  here,  again,  no  doubt  Avas  entertained  by  the  learned 
Judge  of  the  Court  below.  It  is  quite  clear,  that  the  ship  was  in- 
tended to  be  used  as  a  transport  or  storeship  against  a  Prince,  State, 
or  Potentate  with  whom  Her  Majesty  Avas  not  at  Avar.  She  Avas  to 
be  used  obviously  as  a  transport  or  storeship  for  the  purpose  of  con- 
veying to  Cuba  men  and  materials  ;  and  in  that  Avay  to  do  the  duty 
of  a  transport  ship,  and  so  to  inflict  injury  upon  the  Spanish  govei-n- 
ment,  Avho,  at  that  time  Avere,  and  are  now,  the  hiAvful  authority 
having  the  dominion  over  Cuba.  Here,  again,  no  doubt  Avas  enter- 
tained by  the  learned  Judge  in  the  Court  below,  and  no  doubt  could 
be  entertained  by  any  one  who  looks  at  the  evidence  of  Mr.  Duma- 
resq,  to  Avhom  I  have  already  adverted,  and  also  the  evidence  of  Mr. 
Butler,  the  collector  of  revenue,  both  of  Avhom  state  Avhat  the  report 
Avas  Avhich  Avas  made  to  themselves  by  Carlin,  the  master  of  this 
vessel,  as  to  her  conduct  Avhen  she  Avent  to  the  coast  of  Cuba — hoAV 
she  landed  all  the  men  she  had  on  board,  plainly  for  the  purpose  of 
taking  part  in  the  insurrection  Avhich  Avas  going  on  in  Cuba — how 
they  abandoned  the  ship  when  they  saw  a  Spanish  shj[i  of  Avar  in 
sight — hoAV  they  AA'cre  prepared  to  set  fire  to  their  ship  it  the  Spanish 
ship  approached  them — and  how  afterAvards,  Avhen  they  found  that 
they  Avei'e  unnoticed,  they  took  possession  of  the  Salvador  again,  and 
brought  her  back  to  Nassau. 

"  That  leaA^es  uncoA^ered  only  the  third  element  of  charge  in  this 
section,  and  it  is  upon  that  alone  that  the  learned  Judge  of  the  Vice- 
Admiralty  Court  entertained  any  doubt, 

"  The  third  element  is,  that  the  ship  must  be  employed  in  this 
way  in  the  service  of  some  '  foreign  Prince,  State,  or  Potentate,  or  of 
any  foreign  colony,  province,  or  part  of  any  province  or  people,  or  of 
any  person  or  persons  exercising  or  assuming  to  exercise  any  poAA'ers 
of  Government  in  or  over  any  foreign  State,  colony,  province,  or  part 
of  any  province  or  people.'  It  is  to  be  observed  that  this  part  of  the 
section  is  in  the  alternative.     The  ship  may  be  employed  in  the 


458  BELLIGERENTS   AXD    XEUTRALS.  [PART  II 

service  of  a  foreign  Prince,  State,  or  Potentate,  or  foreign  State, 
colony,  province,  or  part  of  any  province  or  people  ;  that  is  to  say,  if 
you  find  any  consolidated  body  in  the  foreign  State,  whether  it  be 
the  Potentate,  who  has  the  absolute  dominion,  or  the  Government, 
or  a  part  of  the  province  or  of  the  people,  or  the  whole  of  the  prov- 
ince or  the  people  acting  for  themselves,  that  is  sufficient. 

"  But  by  way  of  alternative,  it  is  suggested  that  there  may  be  a 
case  where,  although  you  cannot  say  that  the  province,  or  the  people, 
or  a  part  of  the  province  or  people  are  employing  the  ship,  there  yet 
may  be  some  person  or  persons  who  may  be  exercising,  or  assuming 
to  exercise,  powers  of  Government  in  the  foreign  colony  or  State, 
drawing  the  whole  of  the  material  for  the  hostile  i^roceedings  from 
abroad ;  and,  therefore,  by  way  of  alternative,  it  is  stated  to  be  suffi- 
cient, if  you  find  the  ship  prepared  or  acting  in  the  service  of  '  any 
person  or  persons  exercising,  or  assuming  to  exercise,  any  powers  of 
Government  in  or  over  any  foreign  State,  colony,  province,  or  part  of 
any  province  or  people ; '  but  that  alternative  need  not  be  resorted 
to,  if  you  find  the  ship  is  fitted-out  and  armed  for  the  purpose  of 
being  '  employed  in  the  service  of  any  foreign  State  or  people,  or  part 
of  any  province  or  people.' 

"  Upon  that  the  observation  of  the  learned  Judge  was  this : — '  We 
have  no  evidence  of  the  object  of  the  insurrection,  who  are  the  leaders, 
what  portion  of  Cuba  they  have  possession  of,  in  what  manner  this 
insurrection  is  controlled  or  supported,  or  in  what  manner  they 
govei-n  themselves.  How,  therefore,  can  I  say  that  they  are  assum- 
ing the  powers  of  Government  in  or  over  any  part  of  the  Island  of 
Cuba?' 

"  Xow,  it  appears  to  their  Lordships,  that  the  error  into  which  the 
learned  Judge  below  fell,  was  in  coiitining  his  attention  to  what  I 
liave  termed  the  second  alternative  of  this  part  of  the  section,  and 
in  disregarding  the  first  part  of  the  alternative.  It  may  be  (it  is  not 
necessary  to  decide  whether  it  is  so  or  not)  that  you  could  not  state 
who  were  the  person  or  i^ersons,  or  that  there  were  any  person  or 
persons  exercising,  or  assuming  to  exercise,  powers  of  Government 
in  Cuba,  in  opposition  to  the  Spanish  authorities. 

"That  may  be  so:  their  Lordships  express  no  opinion  upon  that 
subject,  but  they  will  assume  that  there  might  be  a  difficulty  in 
bringing  the  case  within  that  second  alternative  of  the  section  ;  but 
their  Lordships  are  clearly  of  opinion,  that  there  is  no  difficulty  in 
bringing  the  case  under  the  first  alternative  of  the  section,  l)ecause 
their  Lordships  find  these  proi)ositions  established  beyond  all  (loul)t, 
— there  was  an  insurrection  in  the  Island  of  Cuba;  there  were  in- 
surgents who  had  formed  themselves  into  a  body  of  people  acting 


CHAP.  III.]        THE   SALE   OF  ARMS,    ETC.,  TO    FKANCE.  459 

together,  undeilakiiig-  and  conducting-  hostilities;  tliese  insurgents, 
beyond  all  doubt,  formed  part  of  the  province  or  people  of  Cuba ; 
and  beyond  all  doubt  the  ship  in  question  was  to  be  employed,  and 
was  employed,  in  connection  with  and  in  the  service  of  this  body  of 
insurgents. 

"  Those  propositions  being  established,  as  their  Lordships  think 
they  clearly  are  established,  both  by  the  evidence  of  Dumaresq  and 
Butler,  to  which  I  have  already  referred,  and  further,  by  the  evidence 
cJf  the  three  witnesses,  Loinaz,  Wells,  and  j\Iama,  their  Lordships 
think  that  the  requisitions  of  the  seventh  section  in  this  respect  are 
entirely  fuliilled,  and  that  the  case  is  made  out  under  this  head,  as 
it  is  upon  all  other  heads  of  the  section. 

"  Their  Lordships,  therefore,  will  humbly  recommend  to  Tier 
Majesty  that  the  decision  of  the  Vice-Admiralty  Court  should  be 
reversed,  and  that  judgment  should  be  pronounced  for  the  Crown, 
according  to  the  prayer  of  the  information. 

"  It  has  been  intimated  to  their  Lordships,  that  on  the  7th  of 
February  last,  there  was  a  decree  by  their  Lordships  for  the  appraise- 
ment and  sale  of  the  vessel.  She  has  been  sold,  and  the  net  pro- 
ceeds, £163,  4s.  8f?.,  paid  into  Her  Majesty's  Commissariat  Chest  in 
the  Bahamas.  The  Colonial  Government,  it  appears,  have  incurred 
expenses  to  the  amount  of  £145,  5s.  lOd.  in  keeping  the  vessel  while 
she  was  under  arrest,  and  they  claim  to  be  reimbursed  those  expenses 
out  of  the  proceeds  of  the  sale.  That,  of  course,  will  be  proper,  and 
if  it  is  necessary  to  make  that  part  of  this  Order,  it  will  be  done." 


Section  43. — The  Sale  of  Munitions  of  War  by  a  Neutral  State. 


THE  SALE  OF  ARMS,  ETC.,  TO  FRAXCE,  1870. 

Report  of  Senate  Committee,  1870. 

( 3  Wharton's  Digest,  512.  ) 

During  the  Franco-Prussian  war,  tlie  government  of  the  United  States  pro- 
ceeded to  sell  a  quantity  of  arms  and  munitions  which  it  had  accumulated 
during  tlie  civil  war,  but  with  no  intention  tliat  these  articles  should  go  into  the 
hands  of  either  belligerent.  The  committee  reported  that  the  sale  was  lawful 
and  proper,  and  would  have  been  so,  if  the  sale  had  been  made  directly  to  one 
of  the  belligerents. 

Early  in  1872  complaints  were  made  to  the  Senate  of  the  United 
States  that  certain  "  sales  of  ordinance  stores  "  had  been  "  made  by 


460  BELLIGERENTS   AXD   NEUTRALS.  [fAHT  II. 

the  Government  of  the  United  States  duiing  the  fiscal  year  ending 
the  30th  of  June,  1871,  to  parties  wlio  were  agents  of  the  French 
Government,  such  stores  to  be  used  by  France  in  the  war  tlien  pend- 
ing with  Germany.  A  committee  was  appohited  to  investigate  the 
subject,  and  on  June  30, 1871,  tliis  committee,  through  2>lv.  Carpenter, 
cliairman,  submitted  a  report,  in  which  it  was  observed  that  tlie 
Government  being  hi  possession,  at  tlie  close  of  the  civil  war,  of  a 
large  quantity  of  "  muskets  and  other  military  stores,"  for  which  it 
had  no  occasion,  a  statute  was  passed  in  1808  (15  Stat.  L.,  250),  au- 
thorizing the  sale  of  such  arms  and  stores  as  were  "unsuitable"  for 
use.  Under  this  provision  certain  large  sales  were  made  "  without " 
(as  the  report  stated)  "  the  least  preference  to  purchasers  as  to  op- 
portunities or  conditions  of  purchase,  except  that  persons  were  ex- 
cluded from  the  opportunity  to  ptirchase  who  were  suspected  of  being 
agents  of  France,  then  at  war  with  Germany." 

On  the  question  whether  the  sales  were  "  made  under  such  cir- 
cumstances as  to  violate  the  obligations  of  the  United  States  as  a 
neutral  power  pending  the  war  between  France  and  Germany,"  the 
committee  reported  as  follows  : 

"  This  subject  involves  two  questions — one  in  regard  to  the  law 
a[)plicable  to  the  transactions  or  the  question  what  the  Government 
hiujht  do  under  the  circumstances,  and  the  other  a  question  of  fact, 
"What  teas  done  ?  As  to  the  first  question,  it  is  the  dtity  of  a  power 
desiring  to  respect  the  obligations  of  neutrality,  to  maintain  strict 
iuq-)artiality  in  regard  to  the  belligerent  powers.  This,  however,  is 
more  a  question  of  intention  than  of  fact.  If  a  nation  be  inider 
treaty  obligations  witli  another,  the  treaty  havhig  been  entered  into 
when  no  war  was  existing  or  anticipated,  to  furnish  such  other  nation 
ships  or  other  siq)plies  in  the  event  of  a  future  war,  the  ol)ligations 
of  such  a  treaty  may  be  discharged  during  the  existence  of  such  war 
without  impairing  the  position  of  the  contracting  nation  as  a  neutral. 
So  if  a  nation  has  a  fund  on  hand  which  it  is  accustomed  to  loan,  or 
is  engaged  in  the  manufacture  and  sale  of  arms  and  other  military 
supplies,  it  may  loan  such  money  or  prosecute  such  sale  during  the 
existence  of  war  between  other  nations,  provided  it  does  so  in  the 
fair  pursuit  of  its  own  interest,  and  without  any  intention  of  in- 
fluencing the  strife." 

After  quoting  Yattel  to  sustam  this  position,  the  committee  went 
on  to  say : 

"Congress  having,  by  tlie  act  of  18G8,  directed  the  Secretary  of 
"War  to  dispo.se  of  these  aims  and  stores,  and  the  Government  being 
engaged  in  such  sales  prior  to  the  war  between  France  and  Germany, 
had  a  right  to  continue  the  same  during  the  war,  and  might,  ia  the 


CHAI'.  III.]       THE   SALE   OF    ARMS,  ETC.,  TO   FRANCE.  461 

city  of  Washington,  liave  sold  and  delivered  any  amount  of  such 
stores  to  P'redericli:  William  or  Louis  Napoleon  in  person,  without 
violating  the  obligations  of  neutrality,  providing  such  sales  were 
made  in  good  faith,  not  for  the  purpose  of  influencing  the  strife,  hut 
in  execution  of  the  lawful  purpose  of  the  Government  to  sell  its 
surplus  arms  and  stores." 

It  was  then  stated  that  after  certain  sales  to  Remington  &  Sons 
had  been  agreed  on,  but  before  delivery,  the  Secretary  of  War  re- 
ceived a  telegram,  which  led  him  "  to  suspect  that  Remington  &  Sons 
might  be  purchasing  as  agents  of  the  French  Government,"  and  he 
then  gave  orders  that  no  further  sales  should  be  made  to  them.  The 
sale  already  made,  however,  was  not  repudiated,  and  the  articles 
were  delivered  subsequent  to  the  reception  of  the  telegram. 

The  committee,  after  an  examination  of  the  facts,  reported  as 
follows : 

"  Your  committee,  without  hesitation,  report  that  the  sales  of  arms 
and  military  stores  during  the  fiscal  year  ending  June  30,  1871,  were 
not  made  under  such  circumstances  as  to  violate  the  obligations  of 
our  Government  as  a  neutral  power ;  and  this,  to  recapitulate,  for 
three  reasons :  (1)  The  Remingtons  were  not,  in  fact,  agents  of  France 
during  the  time  when  sales  were  made  to  them;  (2)  if  they  were 
such  agents,  such  fact  was  neither  known  nor  suspected  by  our 
Government  at  the  time  the  sales  were  made;  and  (3)  if  they  had 
been  such  agents,  and  if  that  fact  had  been  known  to  our  Govern- 
ment, or  if,  instead  of  sending  agents,  Louis  Napoleon  or  Frederick 
William  had  personally  appeared  at  the  War  Department  to  pur- 
chase arms  it  Vv"ould  have  been  lawful  for  us  to  sell  to  either  of  them, 
in  pursuance  of  a  national  policy  adopted  by  us  prior  to  the  com- 
mencement of  hostilities."  ^ 


1  See  the  Senate  Report,  42d  Cong. ,  2d  sess. ,  Rep.  183.  And  see  House  Report, 
46,  42d  Cong. ,  2d  sess. 

Perels,  Int.  Seerecht,  251,  says  that  the  Government  of  the  United  States  sold 
in  October,  1870,  at  pubhc  auction,  500,000  muskets,  163  carbines,  35,000  revol- 
vers, 40,000  sabers,  20,000  horse-trappings,  and  50  batteries  with  ammunition  ; 
and  that  the  export  from  New  York  to  France  from  September  to  the  middle  of 
December  of  that  year  included  378,000  muskets,  45,000,000 pa^rojieu,  55  cannon, 
and  3,000  pistols.     (3  Wharton's  Digest,  p.  513.) 

It  is  to  be  hoped  that  the  report  of  the  Senate  committee  does  not  express  tl:e 
settled  law  of  the  United  States  upon  tliis  subject.  It  confounds  the  rights  and 
duties  of  a  neutral  state  with  those  of  the  private  citizens  of  a  neutral  state,  whicli 
is  a  very  different  matter.  Such  a  transaction,  however  innocent  the  intention, 
can  hardly  fail  to  raise  the  suspicion  of  bad  faith  on  the  part  of  the  neutral  gov- 
ernment. For  it  is  undoubtedly  true  that  a  war  between  foreign  states  provides 
just  the  opportunity  for  the  sale  of  such  articles  to  the  best  advantage. 


462  BELLIGERENTS    AND    NEUTRALS.  [I'ART  II. 


Section  44. — Coxtrabaxd  of  War. 


PROCLAMATIOX  OF  CHAPtLES  I.,  1625. 

( Collectanea  Alaritima.  54.) 

"Forasmuch  as  the  many  injuries  and  indignities  obtruded  upon 
the  King's  most  excellent  Majest}',  and  his  most  deare  and  onlie 
Sister  and  her  children,  and  his  royal  Father,  of  ever  blessed  memory, 
deceased,  by  the  King  of  Spaine,  under  colour  of  treaties  and  alli- 
ances, tlie  many  violences  offered  bj'^  him  to  divers  of  his  Majestie's 
subjects,  in  taking,  slaying  and  ransoming  divers  of  them,  in  a  hostile 
manner,  whilest  thej'  intended  onelj'  their  merchandize  at  sea.  The 
King  of  Spayne's  restlesse  ambition  to  aspire  to  an  universall  mon- 
archye,  discovered  to  the  whole  world,  to  the  disquieting  of  that 
peace  Avliich  other  Princes  and  States,  his  neighbours,  would  gladly 
rest  in  and  enjoy,  have,  out  of  an  unavoidable  necessity,  drawn  his 
most  excellent  IMajestie  to  take  up  amies  against  the  said  King,  for 
defence  of  himselfe,  his  dominions,  and  subjects,  and  of  other  Princes 
and  States,  his  confederates  and  allies,  there  being  none  other  safe 
meanes  for  the  obteyning  of  an  assured  peace  to  himself  and  his 
subjects,  and  to  his  confederates  and  allyes,  which  his  highness  shall 
be  ever  most  ready  to  imbrace,  when  with  safety  and  honour  it  may 
be  had.  His  Majestic,  in  his  princely  wisedome  and  providence, 
foreseeing  that  whilst  the  said  King  of  Spaine  contynneth  in  these 
termes  and  courses  of  hostilitye,  itt  is  neither  agreeable  with  the 
rules  of  policie,  or  law  of  nations,  to  permitt  the  said  King,  or  his 
subjects,  to  be  furnished  and  supplyed  with  corne,  victual,  armes, 
or  provision  for  his  shipping,  navye,  or  armes,  if  the  same  can  be 
prevented  ;  for  although  theis  violent  hostilities  of  the  said  King  of 
Spayne,  to  the  trouble  of  a  great  part  of  the  Christian  domynions, 
are  mightily  maynteyned  by  the  aboundance  of  his  treasure  from  the 
Indyes,  wherein  he  trusteth,  and  with  the  opinion  whereof  he  is 
puffed  up.  Yett  itt  is  manifest,  that  to  maynteyne  his  armes,  and 
renew  his  shipping,  his  monies  in  their  pro[)per  nature  would  not 
suffice,  if  he  were  not  contynually  supplied  with  corne,  and  other 
victualls,  and  furnished  with  munition,  and  materialls  for  armes  and 
shipping,  from  foreigne  countries,  whereof  neither  his  Indies,  nor 
Spayne,  nor  any  other  parte  of  his  owne  dominions,  are  able  to  serve, 


CHAP.  III.]  PROCLAMATION    OF   CHARLES   I.  4G8 

but  the  same  are  knowiie  to  be  brought  into  Spayne,  Portugall, 
Bnrgundie,  and  other  his  countryes  from  forraigne  parts,  not  in  liis 
owne  subjection,  and  tliat  especially  from  the  Hans  Towns,  and 
Marchants  of  the  Northeast  countries,  Avhoe  for  the  desire  of  gayne 
are  contented  to  furnish  the  said  King,  tliough  to  their  owne  ex- 
treanie  hazard  and  prejudice  of  their  neighbours,  with  all  things 
requisite  to  niayntayne  his  unjust  warrs, 
"  For  this  cause  his  Majestye, 

"  Being  amongst  other  Princes  and  States  herein  principally  inter- 
ested, for  the  defence  of  hymselfe,  his  countries  and  subjects,  against 
the  said  King  of  Spayne's  great  preparations  of  his  navyes  and  armies 
by  sea  and  by  land  ;  and  his  Majesty  being  persuaded,  that  if  such 
his  provisions  for  hostilitie  to  be  brought  unto  him  by  sea  from 
forrayne  parts  might  be  stayed,  or  interrupted,  until  the  said  King 
might  be  disposed  to  live  in  peace,  his  Majestic  might  the  sooner 
forbeare  to  continue  his  charge  in  maintaineing  his  forces  both  by 
sea  and  land,  which  he  is  now  constrained  yearlie  to  renewe,  only 
for  the  just  defence  of  himselfe  and  his  dominions,  and  of  his  con- 
federates and  allies. 

"Doth  by  these  presents,  by  the  advice  of  his  Privy  Councell,  notifye 
to  all  manner  of  persons  of  all  conditions,  that  shall  send  or  carrie 
into  Spayne,  Portugall,  Burgundy,  or  any  other  the  said  King  of 
Spaine's  countries,  or  dominions,  any  manner  of  graine,  or  other 
victualls,  or  any  manner  of  provisions  to  serve  to  build,  furnish,  or 
arme  any  shipps  of  warr,  or  any  kind  of  munition  for  the  warr,  or 
materialls  for  the  same,  being  not  of  the  nature  of  meere  merchan- 
dize ;  that  as  it  is  lawful  for  his  Majesty,  being  a  Monarch  and  Prince 
Sovereigne,  and  as  other  Kings,  in  like  cases,  have  alwayes  used  to 
doe,  he  will  not  only  authorize  his  owne  admiralls,  and  captaines  of 
his  owne  shipps  of  warr,  serving  on  the  seas,  but  will  also  allow  and 
approve  all  other  his  subjects,  to  arme  their  shipps  at  their  will,  and 
with  them  to  impeach  and  arrest  all  shipps  that  shall  sayle,  either 
out  of  the  East  parts,  or  out  of  the  Lowe  Countries,  or  from  any 
other  parts,  with  intention  to  passe  to  Spaine,  Portugall,  Burgundy, 
or  any  other  the  King  of  Spain's  countries  or  dominions,  or  to  any 
the  King  of  Spain's  shipps,  being  on  the  seas,  haveing  on  board  any 
such  graine,  victuals,  or  provisions  of  warre,  or  furniture  for  ship- 
ping, or  materialls  for  the  same ;  and  the  same  to  bring  in  to  the 
next  good  port,  there  to  be  ordered  as  goods  duely  forfeited  for  the 
benefitt  of  his  Majesty,  where  his  IMajestie's  shipps  shall  arrest  the 
same,  and  to  the  benefitt  of  such  others  as  being  not  in  his  Majestie's 
wages,  shall,  by  their  travell  and  adventure,  have  stay'd  and  arrested 
such  shipps  and  goods  prohibited,  provided  that  all  others,  besides 


464  BELLIGEREXTS    AND    NEUTRALS.  [PART  II. 

the  ca|)tiiiiies  of  his  Majesties  owne  shipps,  that  sliall  he  disposed  to 
ai'iiie  tlieir  shi[)ps  for  this  purpose,  shall  iiotifle  their  intent  to  the 
Lord  Ilio-h  Admiral  of  England,  making  declaration  of  their  condi- 
tion, of  their  manner  of  ship[)ing-  of  the  furniture  thereof,  of  the 
nuniher  of  men  requisite  to  serve  therein,  with  their  quantity  of 
victualls  and  munition,  and  of  all  other  things  requisite  to  be  cer- 
tified to  the  Lord  Admirall,  which  lu'ing  hy  him  allowed  thereuppon, 
the  owners  of  the  said  shi[)ps,  and  ca[)laines  and  conductors  thereof, 
to  be  bound  to  his  ^lajesty's  use,  in  good  sonnnes  of  money  for  them- 
selves, and,  as  cause  shall  require,  to  the  Lord  Admirall,  with  suflS- 
cient  sureties,  that  they  do  their  best  endeavour  without  fraud,  for 
gaine,  or  composition,  to  arrest  such  shi[)ps  having,  as  aforesaid, 
grane,  victuall,  armes,  munition,  or  furniture  for  shipping,  or  any 
materiall  for  the  same,  intended  to  be  carryed  to  any  of  the  King  of 
Spayne's  dominions,  or  countries  as  aforesaid  :  and  likewise  to  be 
bound,  as  is  aforesaid,  that  with  the  said  shipps  noe  harme  shall  be 
wittingly  done  to  any  person  on  the  seas  being-  in  friendship  with 
his  -^lajestie,  and  that  shall  not  be  privy  to  the  carriage  of  any  such 
grane,  victuall,  provision,  furniture,  or  materialls,  into  any  the  said 
King-  of  Spaine's  dominions,  or  towards  any  of  his  countries,  or  to 
any  tlie  King  of  Spaine's  shippes,  being  on  the  seas.  And  in  case 
any  sliall  be  found  to  have  committed  any  such  offence,  whereby 
their  bonds  shall  be  forfeited,  the  partes  dampnified,  shall  be  fully 
recompenced  for  all  their  losses  and  damages,  with  the  sommes  of 
money  forfeited,  and  otherwise  as  there  shall  be  cause,  and  the  of- 
fendors  alsoe  severely  punished  according  to  their  offences,  by  due 
course  of  lawe. 

"Given  at  our  Honor  of  Hampton  Court,  the  one  and  thirtieth  day 
of  December. 

Pel'  ipsimi  Itegeni} 

1  In  a  sujiplementary  proclamation  of  the  next  j^ear.  to  make  more  definite  the 
list  of  pi-ohibited  goods,  it  is  decreed  as  follows  : 

"  Concerninge  therefore  those  kindes  wherewith  his  Majestie  male  not  suffer 
his  said  enemj'es  to  be  furnished,  his  ^Majestie  doth  by  these  presents  publish  and 
notifie  that  he  liouldeth  theis  tilings  following,  to  be  of  that  quality  and  condi- 
tion, videlicet,  ordinance,  amies  of  all  sortes,  powder,  shott,  match,  brimstone, 
copper,  iron,  cordage  of  all  kindes,  hempe,  saile,  canvas,  danuce  pouldavis, 
cables,  anchors,  mastes,  rafters,  boat  ores,  balks,  capraves,  deale  hoard,  clap 
board,  pipe  staves,  and  vessels  and  vessel  staflfe,  pitch,  tarr,  rosen,  okam.  come 
graine,  and  vichialls  of  all  sortes,  all  provisions  of  shipping,  and  all  munition  of 
warr,  or  of  provisions  for  the  same,  according  to  former  declarations  and  acts 
of  state,  made  in  this  behalfe  in  the  tj'me  of  Queen  Elizabetli,  of  famous 
memorie. 

'*  And  therefore  if  any  person  whatsoever,  after  three  moneths  from  the  pub- 


CHAP.  III.]  THE    ''  PETEIIHOFF."  465 


THE  "  PETERTTOFF.?' 

Supreme  Court  of  the  United  States,  1866. 

(5  Wallace,  28,  58.) 

Classification  of  contraband  ;  non-contraband  goods  belonging  to  the  owner 
of  contraband  on  board  the  same  ship  are  subject  to  confiscation. 

The  following  is  an  extract  from  the  opinion  of  the  court,  deliv- 
ered by  JNIr.  Chief-Justice  Chase  : — 

"  The  classification  of  goods  as  contraband  or  not  contraband  has 
much  perplexed  text-writers  and  jurists.  A  strictly  accurate  and 
satisfactory  classification  is  perhaps  impracticable;  but  that  which 
is  best  supported  by  American  and  Englisli  decisions  may  be  said  to 
divide  all  merchandise  into  three  classes.  Of  these  classes,  the  first 
consists  of  articles  manufactured  and  primarily  and  ordinarily  used 
for  military  purposes  in  time  of  war;  the  second,  of  articles  which 
may  be  and  are  used  for  purposes  of  war  or  peace,  according  to  cir- 
cumstances ;  and  the  third,  of  articles  exclusively  used  for  peaceful 
purposes. 

"  ^Merchandise  of  the  first  class,  destined  to  a  belligerent  country 
or  places  occupied  by  the  army  or  navy  of  a  belligerent,  is  always 
contraband ;  merchandise  of  the  second  class  is  contraband  only 
when  actually  destined  to  the  military  or  naval  use  of  a  belligerent ;, 
while  merchandise  of  the  third  class  is  not  contraband  at  all,  though 
liable  to  seizure  and  condemnation  for  violation  of  blockade  or' 
siege. 

lication  of  theis  presentes,  shall,  by  anie  of  liis  Majesties  owne  sliippes,  or  of  the 
shippes  of  anie  his  subjects  authorized  to  that  effect,  be  taken  sayling  towards 
the  places  aforesaid,  or  returuing  thence  in  the  same  voyage,  having  vented  or 
disposed  of  the  said  prohibited  goods,  his  Majestie  will  hould  both  the  shipps  and 
goods  soe  taken  for  lawful  prize,  and  cause  them  to  be  ordered  as  duely  forfeited, 
whereby  as  his  Majestie  doth  putt  in  practice  noe  innovation,  since  the  same 
course  hath  been  held,  and  the  same  penalties  have  been  heretofore  inflicted  by 
other  States  and  Princes,  upon  the  like  occasions,  and  avowed  and  maintayned 
by  public  wrytings  and  apologies,  so  nowe  his  Majestie  is  in  a  manner  inforced 
thereunto,  by  proclamations  set  -forth  by  the  King  of  Spaine  and  the  Arch- 
duchesse,  in  which  the  same  and  greater  severity  is  professed  against  those  that 
shall  carry  or  have  carried  without  limitation  the  like  commodities  into  theis 
his  Majesties  domynions. 

"  Given  att  our  Court  att  Newmarket,  the  fowerth  day  of  ]\Iarch. 
"  Per  ipsum  regem." 
30 


■iG6  BELLIGERENTS    AND    NEUTRALS.  [PAET  II. 

"  A  considerable  portion  of  the  cargo  of  the  Peterhoff  was  of  the 
third  class,  and  need  not  be  further  referred  to. 

"  A  large  jiortion,  pei-haps,  was  of  the  second  class,  but  is  not 
proved,  as  we  think,  to  have  been  actually  destined  to  belligerent 
nse,  and  cannot  therefore  be  treated  as  contraband.  Another  por- 
tion was,  in  our  judgment,  of  the  first  class,  or,  if  of  the  second, 
destined  directly  to  the  rebel  military  service.  This  portion  of  the 
cargo  consisted  of  the  cases  of  artillery  harness,  and  of  articles  de- 
scribed in  the  invoices  as  '  men's  army  bluchers,'  '  artillery  boots,' 
and  'government  regulation  gray  blankets.'  These  goods  come 
fairly  under  the  description  of  goods  primarily  and  ordinarily  used 
fur  military  purposes  in  time  of  war.  They  make  part  of  the  neces- 
sary equipment  of  an  army. 

"It  is  true  that  even  tliese  goods,  if  really  intended  for  sale  in  the 
market  of  Matamoras,  would  be  free  of  liability;  for  conti'aband 
may  be  transported  by  neutrals  to  a  neutral  port,  if  intended  to 
make  part  of  its  general  stock  in  trade.  But  there  is  nothing  in  the 
case  which  tends  to  convince  us  that  such  was  their  real  destina- 
tion, while  all  the  circumstances  indicate  that  these  articles,  at 
least,  were  destined  for  the  use  of  the  rebel  forces  then  occupying 
Ih-ownsville,  and  other  places  in  the  vicinity. 

'-  And  contraband  merchandise  is  subject  to  a  different  rule  in  re- 
spect to  ulterior  destination  than  that  which  applies  to  merchandise 
not  contraband.  The  latter  is  liable  to  capture  only  when  a  viola- 
tion of  blockade  is  intended ;  the  former  when  destined  to  the  hostile 
country,  or  to  the  actual  military  or  naval  nse  of  the  enemy,  whether 
blockaded  or  not. 

"The  trade  of  neutrals  witli  belligerents  in  articles  not  contra- 
band is  absolutely  free,  unless  interrupted  by  blockade;  the  convey- 
ance by  neutrals  to  belligerents  of  contraband  and  articles  is  always 
unlawful,  and  such  articles  may  always  be  seized  during  transit  by 
sea.  Hence,  while  articles,  not  contraband,  might  be  sent  to  Mata- 
moras  and  beyond  to  the  rebel  region,  where  the  conmiunications 
were  not  interrupted  by  blockade,  articles  of  a  contraband  char- 
acter, destined  in  fact  to  a  state  in  rebellion,  or  for  the  use  of  the 
rebel  military  forces,  were  liable  to  capture,  though  primarily  des- 
tined to  Matamoras. 

"  We  are  obliged  to  conclude  that  the  portion  of  the  cargo  which 
we  have  characterized  as  contraband  must  be  condemned. 

"  And  it  is  an  established  rule  that  the  part  of  the  cargo  belonging 
to  the  same  owner  as  the  contraband  portion  must  share  its  fate. 
This  rule  is  well  stated  by  Chancellor  Kkxt,  thus  :  '  Contraband 
articles  are  infectious,  as  it  is  called,  and  contaminate  the  Avhole 


CHAP,  m.]  THE   "  JONGE   MARGARETHA."  467 

cargo  belonging  to  the  same  owners,  and  the  invoice  of  any  par- 
ticular article  is  not  usually  admitted,  to  exempt  it  from  general 
confiscation.' 

"  So  nnich  of  the  cargo  of  the  Pef)'.rhoJf\  therefore,  as  actually  be- 
longed to  the  owner  of  the  artillery  harness,  and  the  other  contra- 
band goods,  must  be  also  condemned." 


THE  "JONGE  MARGARETHA." 

High  Court  of  Admiralty,  1799. 

(IC.  Robinson,  189.) 

Provisions  going  to  a  port  of  naval  e(]uipment  of  the  enemy  may  be  treated  as 
contraband  of  war.  And  if  the  ship  belongs  to  the  owner  of  the  contraband,  it 
is  also  condemned. 

This  was  a  case  of  a  Papenberg  ship,  taken  on  a  voyage  from 
Amsterdam  to  Brest  with  a  cargo  of  clieese,  April,  1797. 

Judgment, — Sir  W.  Scott  : — 

"There  is  little  reason  to  doubt  the  property  in  this  case,  and 
therefore  passing  over  the  observations  which  have  been  made  on 
that  part  of  the  subject,  I  shall  confine  mj'^self  to  the  single  ques- 
tion :  Is  this  a  legal  transaction  in  a  neutral,  being  the  transactitm 
of  a  Papenberg  ship  carrying  Dutch  cheese  from  Amsterdam  to 
Brest,  or  Morlaix  (it  is  said),  but  certainly  to  Brest;  or,  as  it  may 
be  otherwise  described,  the  transaction  of  a  neutral  carrying  a  cargo 
of  provisions,  not  the  product  and  manufacture  of  his  own  country, 
but  of  the  enemy's  ally  in  the  war — of  provisions  which  are  a  capi- 
tal ship's  store — and  to  the  great  port  of  naval  equipment  of  the 
enemy. 

"  If  I  adverted  to  the  state  of  Brest  at  this  time,  it  might  be  no 
unfair  addition  to  the  terms  of  the  description,  if  I  noticed,  what 
was  notorious  to  all  Europe  at  this  time,  that  there  was  in  that  port 
a  considerable  French  fieet  in  a  state  of  preparation  for  sallying 
forth  on  a  hostile  expedition;  its  motions  at  that  time  were ^A■atched 
with  great  anxiety  by  a  British  fleet  which  lay  off  the  harbor  for 
the  purpose  of  defeating  its  designs.  Is  the  carriage  of  such  a  sup- 
ply to  such  a  place,  and  on  such  an  occasion,  a  traffic  so  purely 
neutral  as  to  subject  the  neutral  trader  to  no  inconvenience? 

"  If  it  could  be  laid  down  as  a  general  position,  in  the  manner  in 
which  it  has  been  argued,  that  cheese  being  a  provision  is  uni- 
versally contraband,  the  question  would  be  readily  answered :  but 


4G8  BELLIGERENTS   AND    NEUTRALS.  [PAIIT  XL 

the  court  lays  down  no  such  position.  The  catalogue  of  contraband 
has  varied  ver}'  much,  and  sometimes  in  such  a  manner  as  to  make 
it  very  difficult  to  assign  the  reason  of  the  variations;  owing  to  par- 
ticular I'ireunistanees,  the  history  of  which  has  not  accompanied  the 
history  of  the  decisions.  In  lOTo,  when  many  unAvarrantable  rules 
were  laid  down  hy  public  authority  respecting  contraband,  it  was 
expressly  asserted  l)y  Sir  \l.  Wiseman,  the  King's  advocate,  u])on  a 
formal  reference  made  to  him,  that  b}^  the  practice  of  the  English 
Admirait}^  corn,  wine,  and  oil  were  liable  to  be  deemed  contraband. 
'I  do  agree,'  says  he,  reprobating  the  regulations  that  had  been  pub- 
lished, and  observing  that  rules  are  not  to  be  so  hardly  laid  down  as 
to  press  upon  neutrals,  '  that  corn,  ^^'ine,  and  oil  will  be  deemed  con- 
traband.' 

"  These  articles  of  provisions  then  were  at  that  time  confiscable, 
according  to  the  judgment  of  a  person  of  great  knowledge  and  expe- 
rience in  the  practice  of  this  court.  In  much  later  times  many  other 
sorts  of  provisions  have  been  condemned  as  contraband.  In  1747,  in 
the  Jonge  Andre((s,  butter,  going  to  Rochelle,  was  condemned.  IIow 
it  happened  that  cheese  at  the  same  time  was  more  favourably  con- 
sidered, according  to  the  case  cited  by  Dr.  Swaljey,  I  don't  exactly 
know.  The  distinction  api)ears  nice.  In  all  j)robal)ility  the  cheeses 
were  not  of  the  species  Miiich  is  intended  for  ship's  use.  Salted  cod 
and  salmon  w^ere  condenmed  in  the  Jon<je  Frederich^  going  to 
IJochelle,  in  the  same  year.  In  1748,  in  the  Joannes^  rice  and  salted 
herrings  were  condemned  as  contraband.  These  instances  show 
that  articles  of  human  food  have  been  so  considered,  at  least  where 
it  was  probable  that  they  were  intended  for  nav.il  or  military  use. 

"  I  am  aAvare  of  the  favourable  positions  laid  down  u[)on  this  mat- 
ter by  Wolfius  and  Vattel,  and  other  writers  of  the  continent, 
although  Vattel  expressly  admits  that  provisions  may,  under  certain 
circumstances,  be  treated  as  contraband.  And  I  take  the  modern 
established  rule  to  be  this,  that  generally  they  are  not  contraband, 
but  may  become  so  under  circumstances  arising  out  of  the  particti- 
lar  situation  of  the  war,  or  the  condition  of  the  parties  engaged  in 
it.  The  court  nuist  therefore  look  to  the  circtimstances  under 
which  this  supply  was  sent. 

"Among  the  circtnnstances  which  tend  to  preserve  provisions 
from  l)eing  liable  to  be  treated  as  contraband,  one  is,  that  they  are 
of  t!ie  growth  of  the  country  which  exports  them.  In  the  present 
case  they  are  the  product  of  another  country,  and  that  a  hostile 
country;  and  the  claimant  has  not  only  gone  out  of  his  way  for  the 
supi)ly  of  the  enemy,  but  he  has  assisted  the  enemy's  ally  in  the  war 
by  talcing  off  his  surplus  connnodities. 


CHAr.  in.]  THE   "JONGE    .MAllGAltETIIA."  469 

"  Another  circumstance  to  which  some  indulgence,  by  the  practice 
of  nations,  is  shown,  is,  when  the  articles  are  in  their  native  and  nn- 
nianufaetured  state.  Thus,  iron  is  treated  with  indulgence,  though 
ancliois  and  other  instruments  fabricated  out  of  it  are  directly  con- 
traband. Hemp  is  more  favourably  considered  than  cordage,  and 
wheat  is  not  considered  as  so  noxious  a  commodity  as  any  of  the 
final  preparations  of  it  for  human  use.  In  the  present  case,  the  arti- 
cle falls  under  this  unfavourable  consideration,  being  a  manufacture 
I3repared  for  immediate  use. 

"  But  the  most  important  distinction  is,  whether  the  articles  were 
intended  for  the  ordinary  use  of  life,  or  even  for  mercantile  ship's 
use;  or  whether  they  were  going  with  a  highly  probable  destination 
to  military  use  ?  Of  the  matter  of  fact  on  which  the  distinction  is 
to  be  applied,  the  nature  and  quality  of  the  port  to  which  the  arti- 
cles were  going  is  not  an  irrational  test ;  if  the  port  is  a  general 
commercial  port  it  shall  be  understood  that  the  articles  were  going 
for  civil  use,  although  occasionally  a  frigate  or  other  ships  of  Avar 
may  be  constructed  in  that  port.  Contra^  if  the  great  predominant 
character  of  a  port  be  that  of  a  port  of  naval  military  equipment,  it 
shall  be  intended  that  the  articles  were  going  for  military  use, 
although  merchant  ships  resort  to  the  same  place,  and  although  it  is 
possible  that  the  articles  might  have  been  applied  to  civil  consump- 
tion ;  for  it  being  impossible  to  ascertain  the  final  use  of  an  article 
aucipitis  usus,  it  is  not  an  injurious  rule  which  deduces  both  ways 
the  final  use  from  the  immediate  destination;  and  the  presumption 
of  a  hostile  use,  founded  on  its  destination  to  a  military  port,  is  very 
much  inflamed  if  at  the  time  when  the  articles  were  going,  a  consid- 
erable armament  was  notoriously  preparing,  to  which  a  supply  of 
those  articles  would  be  eminently  useful. 

"  In  the  case  of  the  Eeiulrajjld.,  cited  for  the  claimant,  the  destina- 
tion was  to  Bourdeaux;  and  though  smaller  vessels  of  war  may  be 
occasionally  built  and  fitted  out  there,  it  is  by  no  means  a  port  of 
naval  military  equipment  in  its  principal  occupation,  in  the  same 
manner  as  Brest  is  universally  known  to  be. 

"  The  court,  however,  was  unwilling  in  the  present  case  to  con- 
clude the  claimant  on  the  one  point  of  destination,  it  being  alleged 
that  the  cheeses  were  not  fit  for  naval  use,  but  were  merely  luxuries 
for  the  use  of  domestic  tables.  It  therefore  j)ermitted  both  parties 
to  exhibit  affidavits  as  to  their  nature  and  quality.  The  claimant 
has  exhibited  none ;  but  here  are  authentic  certificates  from  persons 
of  integrity  and  knowledge  that  they  are  exactly  such  cheeses  as 
are  used  in  British  ships  wlien  foreign  cheeses  are  used  at  all,  and 
that  they  are  exclusively  used  in  French  ships  of  war. 


470  BELLIGERENTS    AND   NEUTRALS.  [PART  II. 

"  AtteiKliiig-  to  all  these  eircnmstunces,  I  think  myself  warranted 
to  pronounce  these  cheeses  to  be  contraband,  and  condemn  them  as 

As  suchj  liowever,  the  party  has  acted  without  dissimulation  in 
the  case,  and  may  have  been  misled  by  an  inattention  to  circum- 
stances, to  wliioh  in  strictness  he  ought  to  have  adverted,  as  well  as 
by  something  like  an  irregular  indulgence  on  which  he  has  relied  ;  I 
shall  content  myself  with  pronouncing  the  cargo  to  be  contraband 
without  enforcing  the  usual  penalty  of  the  confiscation  of  the  ship 
belonging  to  the  same  proprietor."  ^ 


THE  «  COMMERCEN." 

Supreme  Court  of  the  United  States. 
( 1  ^^leaton,  382.) 

By  the  modern  law  of  nations,  provisions  are  not  in  general  deemed  contra- 
band, but  they  may  become  so  on  account  of  tlie  pai'ticular  situation  of  the 
war,  or  on  account  of  then*  destination  to  the  military  use  of  tlie  enemj'. 

This  was  the  case  of  a  Swedish  vessel  captured  on  the  16th  of 
A}>ril,  1814,  b}'  the  private  armed  schooner  Lawrence^  on  a  voyage 
from  Limerick,  in  Ireland,  to  Bilboa,  in  Spain.  The  cargo  consisted 
of  barley  and  oats,  the  property  of  British  subjects,  the  exportation 
of  which  is  generally  prohilnted  by  the  British  government ;  and,  as 
well  by  the  official  papers  of  the  custom-house  as  by  the  private  let- 
ters of  the  shippers,  it  appears  to  have  been  shipped  under  the 
special  permission  of  the  government  for  the  sole  use  of  his  Britannic 
Majesty's  forces  then  in  Spain. 

The  following  is  an  extract  from  the  opinion  of  the  court,  deliv- 
ered V)y  Story,  J. : — 

"The  single  point  now  in  controversy  in  this  cause  is,  whether  the 
ship  is  entitled  to  tlie  freight  for  the  voyage.  The  general  rule  that 
the  neutral  carrier  of  enemy's  property  is  entitled  to  his  freight,  is 
now  too  firmly  established  to  admit  of  discussion.  But  to  this  rule 
there  are  many  exceptions.  If  the  neutral  be  guilty  of  fraudulent  or 
unneutral  conduct,  or  has  intei-posed  himself  to  assist  the  enemy  in 
carrying  on  the  war,  he  is  justly  deemed  to  have  forfeited  his  title 
to  freight.  Hence,  the  carrying  of  contraband  goods  to  the  enemy; 
the  engaging  in  the  coasting  or  colonial  trade  of  the  enemy  ;  the 

'  See  to  the  same  effect :  Tlie  Frau  Margarefha.  C  C.  Rob..  92  ;  the  Zelden 
Runt,  6  C.  Rob.,  93;  the  Ranger,  6  C.  Rob.,  125  (ship's  biscuit  condemned); 
tlie  Edward,  4  C.  Rob.,  68. 


CHAP.  III.]  THE    "COilMEllCEN."  471 

spoliation  of  papers,  and  the  fraudulent  suppression  of  enemy  inter- 
ests have  been  held  to  affect  the  neutral  with  the  forfeiture  of 
freight,  and  in  cases  of  a  more  flagrant  character,  such  as  carrying 
despatches  or  hostile  military  passengers,  an  engagement  in  the 
transport  service  of  the  enemy,  and  a  breach  of  blockade,  the  pen- 
alty of  confiscation  of  the  vessel  has  also  been  inflicted.  By  the 
modern  law  of  nations  provisions  are  not,  in  general,  deemed  contra- 
band, but  they  may  become  so,  although  the  property  of  a  neutral, 
on  account  of  the  particular  situation  of  the  war,  or  on  account  of 
their  destination.  If  destined  for  the  ordinary  use  of  life  in  the  ene- 
my's country  they  are  not,  in  general,  contraband ;  but  it  is  other- 
wise if  destined  for  military  use.  Hence,  if  destined  for  the  army  or 
navy  of  the  enemy,  or  for  his  ports  of  naval  or  military  equipment, 
they  are  deemed  contraband."  ^ 

'  Provisions. — In  the  case  of  Maissonnaire^.  Keating,  2  Gallison,  the  question 
was  as  to  the  vaUdity  of  a  Russian  document,  in  which  the  legahty  of  the  cap- 
ture had  to  be  passed  upon.  It  was  the  case  of  a  cargo  of  provisions  ;  and  tlie 
court  held  that  provisions  gomg  to  a  port  of  naval  equipment  of  the  enemy,  and  a 
fortiori,  if  destined  for  the  supply  of  his  army,  became  contraband,  and  sub- 
jected the  vessel  (probably  belonging  to  owner  of  cargo)  and  cargo  to  confiscation 
bj'  the  other  belligerent. 

Res  ancipitis  tisiis. — As  to  the  question:  what  articles  shall  be  regarded  as 
contraband  of  war?  there  has  been,  and  still  is,  a  wide  difference  of  opinion. 
The  English  prize  courts,  as  shown  by  the  cases  given,  have  treated  provisions  as 
contraband  in  certain  circumstances  ;  and  the  American  courts  followed  this 
practice.  The  French  decrees  and  decisions,  on  the  other  hand,  have  taken  the 
opposite  view,  that  provisions  are  in  no  case  to  be  treated  as  contraband.  And 
yet,  in  1885,  the  French  government  announced  that  it  proposed  to  treat  rice 
bound  for  open  Chinese  ports  as  contraband  of  war. 

As  to  other  articles  ancipitis  iisus,  those  most  in  controversy  have  been  naval 
stores,  including  in  that  term  everything  used  in  the  construction  of  ships  of  war. 
The  cases  in  which  these  articles  have  been  confiscated  by  the  Enghsh  prize 
courts  are  very  niimerous.     A  few  of  the  leading  cases  are  as  follows  : — 

Tlie  Staat  Emhden,  1  C.  Rob.,  26  (masts) ;  the  Endrauglit,  1  C.  Rob.,  22  (tun- 
ber) ;  theJonge  Tobias,  1  C.  Rob.,  329  (tar) ;  the  Sarah  Christina,  1  C.  Rob.,  237, 
241  (tar  and  pitch) ;  the  Ringende  Jacob,  1  C.  Rob.,  89  (hemp,  iron  bars) ;  the 
Neptiums,  3  C.  Rob.,  108  (sail  cloth). 

The  greater  number  of  these  articles  were  treated  by  Sir  William  Scott  ss 
goods  absolutely  contraband,  if  going  to  an  enemy's  port,  without  considering 
the  nature  of  the  port.  The  government  of  the  United  States,  in  1797,  held  the 
same  view  :  "  Ship  timber  and  naval  stores,"  said  the  Secretary  of  State,  "are 
by  the  law  of  nations  contraband  of  war."  It  will  be  seen  by  the  French  cases 
la  Minerve  and  others,  that  the  French  practice  is  the  reverse  of  that  of  Eng- 
land and  the  United  States. 

The  recent  changes  in  naval  warfare,  brought  about  by  the  introduction  of 
steam  power  and  steel  ships,  have  introduced  a  large  number  of  new  articles 
into  the  list  of  contraband  or  "  occasional  contraband  "  goods.     This  may  be 


■±r2  BELLIGERKST6   AMD   MEUTKALS.  [pAliT  IL 


"TL  VOLAXTE." 

Le  Coxseil  des  Prises,  1807. 

{Pistoye  et  Duterdy,  I.,  409.) 

France  does  not  regard  timber  for  the  construction  of  ships  as  contraband  of 
war. 

Le  corsaire  VEtoile  de  Bonaparte  avait  capture  lenavireantrichi en 
il  Yolante  ;  cette  capture  a  donne  lieu  a  la  decision  suivantedu  Con- 
seil  des  prises. 

"  Le  Co>'seil: — Attendu  qu'il  est  constant,  par  les  pieces  de  bord, 
que  le  navire  et  le  chargenient  sont  proprietes  neutres ;  que  le  port 
de  Messine,  pour  lequel  I'expedition  etait  destinee,  malgre  I'autorite 
que  peuvent  y  exercer  les  Anglais,  n'est  point  soumis  au  blocus  qui, 
aux  termes  du  decret  du  21  novembre  1806,  a  lieu  pour  les  ports  et 
les  lies  Britauniques  ;  et  que  les  sucres,  suivant  le  nianifeste  et  le 
connaissement,  proviennent  de  Lisbonne,  et  ont  ete  raffines  par  la 

seen  m  ]Mr.  G.  Lushington's  "  ilanual  of  Naval  Prize  Law"  (edition  of  1866),  in 
wliich  goods  absolutely  contraband  are  enumerated  as  follows  : — 

' '  Anns  of  all  kinds  and  machinery  for  manufacturing  arms.  Ammunition 
and  materials  for  ammunition,  including  lead,  suljjhate  of  potash,  muriate  of 
potash,  chlorate  of  potash,  and  nitrate  of  soda.  Gunpowder  and  its  materials, 
saltpetre  and  brimstone  ;  also  gun-cotton, 

"  ]\Iilitary  equipments  and  clothing.     Militaiy  stores. 

"  Naval  stores,  such  as  masts,  spars,  rudders,  and  ship  timber,  hemp  and 
cordage,  sail-cloth,  pitch  and  tar  :  copper  fit  for  sheathing  vessels  ;  marine  en- 
gines, and  the  component  paiis  thereof,  includhig  screw-projjellers,  paddle- 
wheels,  cylinders,  cranks,  shafts,  boilers,  tubes  for  boilei-s,  boiler-plates,  fire- 
bars ;  marine  cement  and  the  materials  in  the  manufacture  thereof,  as  blue-Uas 
and  Portland  cement.  Iron  in  any  of  the  following  forms  :  Anchors,  rivet- 
iron,  angle-iron,  round  bars  from  f  to  f  of  an  inch  diameter,  rivets,  strips  of 
iron,  sheet  plate-iron  exceeding  i  of  an  inch,  and  low-moor  and  bowUng 
plates." 

Goods  conditionally  contraband  comprise  : 

"  Provisions  and  liquors  fit  for  the  consumption  of  army  or  navy  ;  money  ; 
telegraph  materials,  such  as  wire,  porous  cups,  platma,  sulphuric  acid,  and 
zinc.     Materials  for  the  construction  of  a  railway,  as  iron  bars,  sleepers,  etc. 

"  Coals,  hay,  horses,  rosin,  tallow,  timber." 

Pre-emption. — See  as  to  the  doctrine  of  pre-emption  set  up  by  the  English 
prize  courts,  the  cases  of  thn  Haabet,  2  C  itob.,  1»2  ;  thu  iSaiuk  Lhiisliitu,  1 
C.  Rob.,  237. 


CHAP.  III.]  "  IL   VOLANTE."  473 

Compagnie  de  Trieste  et  Fiume; — Atteiulu  que  le  nioj^eu  (ic'iliiil  dc 
la  qnalite  ties  bois  eomposaiit  la  majeure  paitie  de  la  cai-g'ai.soii.  et 
sur  letpiel  les  eapteurs  out  le  plus  iusiste,  ue  peat  etre  aceueilli  si 
I'ou  cousidcTu  (pie,  loiu  ([u'il  soit  dcnioutrii  que  ees  bois  ap[)artieuiicut 
exclusiveineut  a  la  eoustruetiou  des  batiuieuts  de  guerre,  eouune 
Tout  peuse  les  experts  qui  out  operc  liors  de  la  preseuce  des  p.irties 
interessees,  le  contraire  semble  resultei-,  taut  de  la  teueur  du  proces- 
verbal  de  visite  qu'ils  out  irreguliereuieut  dresse,  que  de  la  diineu- 
sion  des  ])lauches  et  de  leur  uouibre  compare  avec  la  capacite  du 
navire; — Qu'au  reste,  et  eu  abordaut  la  question  de  contrebande 
elevee  par  le  corsaire,  il  est  facile  de  se  couvaiucre  que  la  solution 
lui  en  est  contraire.  En  etfet,  les  bois  de  construction  ne  sont  de- 
clares contrebande  de  guerre  paraucun  traite  particulier ;  c'est  faute 
d' avoir  la  le  traite  de  1742,  conclu  entre  la  France  et  le  Daneuiark, 
qu'on  a  dit  qu'il  comprenait  sous  cette  denomination  les  bois  de 
construction.  Si,  par  Tarrete  du  Direetoire  du  12  ventose  an  V,  ils 
ont  ete  ranges  parmi  les  objets  prohibes,  ce  n'a  ete  que  relativement 
aux  Aniericains  qui  avaient  souftert,  par  leur  traite  de  1794  avec  les 
Anglais,  que  ces  objets  fussent  regardes  comme  de  contrebande;  et 
la  disposition  de  cet  arrete,  de  droit  annulee  par  la  convention  du  8 
vendeniiaire  an  IX,  passee  entre  la  France  et  les  Etats-Unis  d'Ame- 
riqne,  qui,  en  speclfiant  tons  les  articles  de  contrebande,  n'y  a  point 
compris  les  bois  de  construction.  Lors  meme  que  Ton  aurait  pu 
soutenir  avec  quel  que  fondement  que  la  prohibition  contenue  dans 
I'arrete  du  12  veutose  an  V  eut  ete  applicable  a,  tons  les  neutres,  elle 
se  tronverait  implicitement  rapportee  par  I'arrete  du  29  frimaire  an 
VIII,  qni,  a  Tegard  de  la  navigation  des  neutres,  a  retabli  les  dispo- 
sitions du  reglement  du  26  juillet  1778,  dont  Part.  15  ordonne  I'exe- 
cuiion  de  Tordonnance  de  la  marine  de  1681,  laquelle,  dans  Tenume- 
ratiou  des  objets  de  contrebande  de  guerre,  ne  place  point  les  bois 
de  construction :  d'oti  il  faut  conclure  que  la  destination  pour  un 
port  eimemi  des  planches  chargees  sur  le  navire  il  Volante,  quel 
qu'en  dut  etre  Temploi,  ne  les  a  pohit  rendues  confiscables,  et  que 
tout  au  plus  elle  serait  susceptible,  avec  les  autres  circonstances  de 
la  prise,  d'exenqiter  les  eapteurs  des  dommages  et  inter^ts ; — Decide 
que  la  prise,  faite  par  le  corsaire  fran9ais  VEtoile  de  Bonaparte,  da 
navire  autrichien  il  Volante,  est  invalide ;  en  fait  pleine  et  entiere 
mainlevee  au  profit  des  propiietaires."  ^ 

'  Ajid  see,  La  Minerve,  Pistoye  et  Duverdy,  I.,  410. 


474  BELL10EitE^■T6   A.ND    NEL'TilALS.  [PAET  U. 


THE  "  XEUTRALITET." 

High  Court  of  Admiralty,  1801. 

(3  C.  Robinson,  295.) 

Penalty  for  carrying  contraband.  It  does  not  as  a  rule  involve  the  confisca- 
tion of  the  ship. 

This  was  a  case  of  a  Danish  ship  taken  with  a  cargo  on  a  voj^age 
from  Archangel  to  Dordrecht.  Tlie  ship  had  been  a  Dutch  vessel, 
and  was  asserted  to  have  been  purchased  by  Mr.  Schultz,  of  Altona. 
She  then  went  from  Holland  to  Altona,  and  was  from  thence  sent  on 
to  Archangel,  to  carry  a  cargo  to  Dordrecht,  under  a  charter  party 
made  by  the  asserted  owner. 

Judgment, — Sir  W.  Scott  : — 

"  The  modern  rule  of  the  la^^■  of  nations  is,  certainly,  that  the  ship 
shall  not  be  subject  to  condemnation  for  carrymg  contraband 
articles. 

•'  The  ancient  practice  was  otherwise,  and  it  cannot  be  denied, 
that  it  was  perfectly  defensible  on  every  principle  of  justice.  If  to 
supply  the  enemy  with  such  articles  is  a  noxious  act  with  respect  to 
the  owner  of  the  cargo,  the  vehicle  which  is  instrumental  in  effect- 
ing that  illegal  purpose  cannot  be  innocent.  The  policy  of  modern 
times  has  however  introduced  a  relaxation  on  this  point;  and  the 
general  rule  now  is,  that  the  vessel  does  not  become  confiscable  for 
that  act.  But  this  rule  is  liable  to  exceptions:  Where  a  ship  be- 
longs to  the  owner  of  the  cargo,  or  where  the  ship  is  going  on  such 
service,  under  a  false  destination  or  false  papers;  these  circum- 
stances of  aggravation  have  been  held  to  constitute  excepted  cases 
out  of  the  modern  rule,  and  to  continue  them  under  the  ancient  one. 
The  circumstances  of  the  present  case  compose  a  case  of  exception 
also ;  for  it  is  a  case  of  singular  misconduct  on  the  part  of  the  asserted 
ship  owners.  They  are  subjects  of  Denmark,  and  as  such  are  under 
the  peculiar  obligations  of  a  treaty  not  to  carry  goods  of  this  nature 
for  the  use  of  the  enemies  of  Great  IJritain. 

"  A  reference  has  been  made  to  ancient  cases  of  Dantzick  ships, 
which  were  restored,  though  taken  carrying  masts  to  Cadiz.  The 
particulars  of  those  cases  ai-e  not  vei-y  exactly  stated;  but  they  were 
clearly  the  cases  of  proprietors  exporting  the  produce  of  their  own 


CHAP.  III.]  SETON    V.  LOW.  475 

territoiT,  or  of  n('igiil)oriiiq-  ports,  without  the  breach  of  any  obliga- 
tion V)ut  such  as  the  general  law  of  nati(jns  imposed. 

"  In  this  instance  the  ship  was  freighted  at  Allona,  to  go  to  Arch- 
angel, for  the  purpose  of  canying  a  cargo  of  tar  to  Holland,  which 
is  a  commerce  expressly  prohibited  by  the  Danish  treaty.  Tar  is  an 
article  which  a  Danish  ship  cannot  lawfully  carry  to  an  enemy's 
poi't,  even  when  it  is  the  produce  and  manufacture  of  Denmark. 
This  ship  goes  to  a  foreign  port,  to  effect  that  which  she  is  pro- 
hibited from  doing,  even  for  the  produce  of  her  own  country ;  in 
this  respect,  throwing  off  the  character  of  a  Danish  ship  by  vio- 
lating the  treaties  of  her  country  ;  and  all  this  is  done  with  the  full 
privity  of  the  asserted  owner,  who  is  the  person  entering  into  the 
charter  party.  In  such  a  case  as  the  present,  the  known  ground  on 
which  the  relaxation  was  introduced,  the  supposition  that  freiglits 
of  noxious  or  doubtful  articles  might  be  taken,  without  the  personal 
knowledge  of  the  owner,  entirely  fails ;  and  the  active  guilt  of  tlie 
parties  is  aggravated  by  the  circumstances,  of  its  being  a  criminal 
traffic  in  foreign  commodities,  and  in  breach  of  explicit  and  special 
obligations.  The  confiscation  of  a  ship  so  engaged  will  leave  the 
general  rule  still  untouched,  that  the  carriage  of  contraband  works 
a  forfeiture  of  freight  and  expenses,  but  not  of  the  ship. 

"Ship  condemned." 


SETON  V.  LOW. 

Supreme  Coukt  of  New^  York,  1799. 

(  1  Johnson,  1.) 

A  trade  by  a  neutral  in  articles  of  contraband  is  a  lawful  trade.  And  a 
contract  of  insurance  on  such  goods  is  valid. 

This  was  an  action  on  a  policy  of  insurance,  which  included  "all 
kinds  of  lawful  goods  and  merchandises"  on  board  the  Hannali^ 
etc. 

The  ship  having  been  captured  and  a  part  of  the  goods  condemned 
as  contraband,  the  defendants  refused  to  pay  the  insurance,  on  the 
ground  that  the  plaintiff's  had  not  informed  them  of  the  nature  of 
the  cargo. 

The  following  is  an  extract  from  the  judgment : 

Kekt,  J. — "  Two  questions  were  raised  on  the  argument  in  this 
case. 

"  1.  Whether  the  contraband  goods  were  lawful,  within  the  mean- 
ing of  the  policy. 


47-3  BELLIGERENTS    AND    NEUTRALS.  [PAET  II. 

"•2.  If  lawful,  whether  the  iissured  were  bouiul  to  disclose  to  the 
defendant  the  fact,  that  part  of  the  cargo  was  contraband  of  war. 

"  On  the  first  point,  I  am  of  opinion,  that  the  contraband  goods 
were  lawful  goods,  and  that  whatever  is  not  prohibited  to  be  ex- 
ported, by  tlie  positive  law  of  the  country,  is  lawful.  It  may  be 
said,  that  tlie  law  of  nations  is  part  of  the  municipal  law  of  the  land, 
and  that  by  that  law  (and  which,  so  far  as  it  concerns  the  present 
question,  is  expressly  incorporated  into  our  treaty  of  counnerce  with 
Great  Britain)  contraband  trade  is  prohibited  to  neutrals,  and,  con- 
sequentl}',  nnhuAful.  This  reasoning  is  not  destitute  of  force,  but  the 
fact  is,  that  the  law  of  nations  does  not  declare  the  trade  to  be  unlawful. 
It  only  authorizes  the  seizure  of  the  contraband  articles  by  the  bel- 
ligerent po\Aers;  and  this  it  does  from  necessity.  A  neutral  nation 
has  nothing  to  do  with  the  war,  and  is  under  no  moral  obligation  to 
abandon  or  abridge  its  trade;  and  yet,  at  the  same  time,  from  the 
Jaw  of  necessity,  as  Vattel  observes,  the  powers  at  war  have  a  right 
to  seize  and  confiscate  the  contraband  goods,  and  tliis  they  may  do 
from  the  principle  of  self-defence.  The  right  of  the  hostile  power 
to  seize,  this  same  very  moral  and  correct  writer  continues  to  ob- 
serve, does  not  destroy  the  right  of  the  neutral  to  transport.  They 
i'.re  rights  which  may,  at  times,  reciprocally  clash  and  injure  each 
other.  But  this  collision  is  the  eft'ect  of  inevitable  necessity,  and 
the  neutral  has  no  just  cause  to  complain.  A  trade  by  a  neutral  in 
articles  contraband  of  war  is,  therefore,  a  lawful  trade,  though  a 
trade,  from  necessity,  subject  to  inconvenience  and  loss." 


Ex-PAETE  CHAYASSE,  ix  ke  GRAZEBROOK. 

Court  of  Appeal  ix  Baxkruptcy,  1865. 

(34  L.  J.  n.  s.,  Bdukruptcy,  17.) 

Trade  in  contraband  articles  by  a  neutral  Ls  lawful. 

Chavasse  and  (irazebrook  went  into  jiartnership  in  the  furnishing 
of  contraband  articles  to  the  Confederac3^  Botli  parties  became  baidv- 
rupt,  and  the  assignees  of  Chavasse  presented  a  petition  to  have  the 
proceeds  of  these  transactions  apportioned,  Chavasse  never  having 
received  anything  from  them.  This  i)etit:ion  was  dismissed  with 
costs  on  the  ground  of  the  illegality  of  the  contract.  An  appeal  was 
allowed,  the  Lord  Chancellor  considering  that  there  was  a  valid 
partnership.  He  cites  the  Santissima  Trinidad  (7  Wheat.,  B40), 
and  quotes  the  following  passage  to  be  a  very  correct  rei^resenta- 


CHAl'.  III.]  THE    "  ATALAXTA."  477 

tion  of  the  present  state  of  the  hiw  of  England  also  : — "  There  is  noth- 
ing in  our  laws,  or  in  the  law  of  nations,  that  forbids  our 
citizens  from  sending  armed  vessels  as  well  as  nnuiitions  of  war 
to  foreign  ports  for  sale.  It  is  a  commercial  adventure  which  no 
nation  is  bound  to  prohibit,  and  which  only  exposes  the  persons 
engaged  in  it  to  the  penalty  of  confiscation." 

He  also  said:  "But  this  commerce,  "v^iiich  was  perfectly  lawful 
for  the  neutral  with  either  belligerent  country  before  the  war,  is  not 
made  by  the  war  unlawful  or  capable  of  being  prohibited  by  both  or 
either  of  the  belligerents  ;  and  all  that  international  law  does  is  to 
subject  the  neutral  merchant  who  transports  the  contraband  of  war 
to  the  risk  of  having  his  ship  and  cargo  captured  and  condemned  by 
the  belligerent  power  for  whose  enemy  the  contraband  is  destined."  ^ 


Section  45. — Despatches  axd  Persons  as  Contraband. 


THE  "ATALANTA." 

High  Court  of  Admiralty,  1808. 

(  6  C.  Robinson,  440.) 

Carrying  dispatches  from  the  Governor  of  the  Isle  of  France  to  the  Ministei- 
of  ]\Iarine,  at  Paris,  is  cause  of  confiscation  of  the  ship. 

This  was  a  case  of  a  Bremen  ship  and  cargo,  captured  on  a 
voyage  from  Batavia  to  Bremen,  on  the  14th  of  July,  1797,  having 
come  last  from  the  Isle  of  France ;  wliere  a  packet  containing  dis- 
patches from  the  Government  of  the  Isle  of  France  to  the  Ministei* 
of  Marine,  at  Paris,  was  taken  on  board  by  the  master  and  one  of 
the  supercargoes,  and  was  afterwards  found  concealed  in  the  pos- 
session of  the  second  supercargo,  under  circumstances  detailed  in  the 
judgment. 

Extract  from  judgment, — Sir  W.  Scott  : — 

"The  question  then  is,  what  are  the  legal  consequences  attaching 
on  such  a  criminal  act? — for  that  it  is  criminal  and  most  noxious  is 
scarcely  denied.  What  might  be  the  consequences  of  a  simjjle  trans- 
mission of  dispatches,  I  am  not  called  upon  by  the  necessities  of  the 
present  case  to  decide,  because  I  have  already  pronounced  this  to  be 
Q.  fraudulent  case.     That  the  simple  carrying  of  dispatches,  between 

'  The  only  penalty  by  the  modern  law  of  nations  for  cariying  contra- 
band is  the  loss  of  freight  and  expenses.  The  Ringende  Jacob,  1  C.  Eob.,  90  ; 
the  Sarah  Christina,  lb.,  242,  and  others. 


478  BELLIGERENTS   AND   NEUTRALS.  [PAKT  IL 

the  colonies  and  the  mother  country  of  the  enemy,  is  a  service 
highh'  injurious  to  tlie  otlier  Belligerent,  is  most  obvious.  In  the 
present  state  of  the  world,  in  the  hostilities  of  Evropean  powers,  it 
is  an  object  of  great  importance  to  preserve  the  connection  between 
the  mother  countrj^  and  her  colonies ;  and  to  interrupt  that  connec- 
tion, on  the  part  of  the  other  Belligerent,  is  one  of  the  most  ener- 
getic operations  of  war.  The  importance  of  keeping  up  that  connec- 
tion, for  the  concentration  of  troops,  and  for  various  military  pur- 
poses, is  manifest ;  and  I  may  add,  for  the  supply  of  civil  assistance, 
also,  and  support,  because  the  infliction  of  civil  distress,  for  the  pur- 
pose of  compelling  a  surrender,  forms  no  inconsiderable  part  of  the 
operations  of  war.  It  is  not  to  be  argued,  therefore,  that  the  im- 
portance of  these  dispatches  might  relate  only  to  the  civil  wants  of 
the  colony,  and  that  it  is  necessary  to  shew  a  military  tendency  ; 
because  the  object  of  compelling  a  surrender  being  a  measure  of 
w^ar,  whatever  is  conducive  to  that  event  must  also  be  considered  in 
the  contemplation  of  law,  as  an  object  of  hostility,  although  not  pro- 
duced by  operations  strictly  military.  How  is  this  intercourse  with 
the  mother  country  kept  up,  in  time  of  peace?  by  ships  of  war  or 
by  packets  in  the  service  of  the  state.  If  a  war  intervenes  and  the 
other  Belligerent  prevails  to  interrupt  that  communication,  any  per- 
son stepping  in  to  lend  himself  to  effect  the  same  purpose,  under  the 
privilege  of  an  ostensible  neutral  character,  does,  in  fact,  place  him- 
self in  the  service  of  the  enemy-state,  and  is  justly  to  be  considered 
in  that  character.  Nor  let  it  be  supposed,  that  it  is  an  act  of  light 
and  casual  importance.  The  consequence  of  such  a  service  is  indefi- 
nite, infinitely  beyond  the  effect  of  any  contraband  that  can  be  con- 
veyed. The  carrying  of  two  or  three  cargoes  of  stores  is  necessarily 
an  assistance  of  a  limited  nature ;  but  in  the  transmission  of  dis- 
patches may  be  conveyed  the  entire  plan  of  a  campaign,  that  may  de- 
feat all  the  projects  of  the  other  Belligerent  in  that  quarter  of  the 
world.  It  is  true,  as  it  has  been  said,  that  one  hall  might  take  off  a 
Charles  the  Xllth,  and  might  produce  the  most  disastrous  effects  in 
a  campaign;  but  that  is  a  consequence  so  remote  and  accidental, 
that  in  the  contemplation  of  human  events  it  is  a  sort  of  evanescent 
quantity  of  which  no  account  is  taken ;  and  the  practice  has  been 
a(:co7-diiif/h/,  that  it  is  in  considerable  qiTantities  only  that  the  offence 
of  contraband  is  contemplated.  The  case  of  dispatches  is  very  dif- 
ferent ;  it  is  impossible  to  limit  a  letter  to  so  small  a  size,  as  not  to 
be  capable  of  producing  the  most  important  consequences  in  the 
operations  of  the  enemy.  It  is  a  service,  therefore,  which,  in  what- 
ever degree  it  exists,  can  only  be  considered  in  one  character,  as  an 
act  of  the  most  noxious  and  hostile  nature. 


CHAP.  III.]  THE   "ATALANTA."  470 

'•  This  country,  which — ho\yever  much  its  practice  may  he  misrep- 
reseiited  by  foreign  writers,  and  sometimes  by  our  own,  has  always 
administered  the  law  of  nations  with  lenity,  adopts  a  more  indulgent 
rule,  inflicting  on  the  s])i[)  only  a  forfeiture  of  freight  in  ordinary 
cases  of  contraband.  But  the  offence  of  carrying  dispatches  is,  it 
has  been  observed,  greater.  To  talk  of  the  confiscation  of  the  nox- 
ious article,  the  dispatches,  which  constitutes  the  penalty  in  contra- 
band, would  be  ridiculous.  There  would  be  no  freight  dependent  on 
it,  and  therefore  the  same  precise  penalty  cannot,  in  the  natui-e  of 
things,  be  applied.  It  becomes  absolutely  necessary,  as  Avell  as  just, 
to  resort  to  some  other  measure  of  confiscation,  which  can  be  no 
other  than  that  of  the  vehicle. 

"  Then  comes  the  other  question,  whether  the  penalty  is  not  also 
to  be  extended  further,  to  the  cargo,  being  the  property  of  the  same 
proprietors— not  merely  oh  continentiani  delicti,  but  likewise  be- 
cause the  representatives  of  the  owners  of  the  cargo,  are  directly  in- 
volved in  the  knowledge  and  conduct  of  this  guilty  transaction  ? 
On  the  circumstances  of  the  present  case  I  have  to  observe,  that  the 
offence  is  as  much  the  act  of  those  who  are  the  constituted  agents 
of  the  cargo,  as  of  the  master,  who  is  the  agent  of  the  ship.  The 
general  rule  of  law  is,  that,  where  a  party  has  been  guilty  of  an  in- 
terposition in  the  war,  and  is  taken  in  delicto,  he  is  not  entitled  to 
the  aid  of  the  court,  to  obtain  the  restitution  of  any  part  of  his 
property  involved  in  the  same  transaction.  It  is  said,  that  the  term,, 
'interposition  in  the  war'  is  a  very  general  term  and  not  to  be 
loosely  applied.  I  am  of  opinion,  that  this  is  an  aggravated  case  of 
active  interposition  in  the  service  of  the  enemy,  concerted  and  con- 
tinued in  fraud,  and  marked  witli  every  species  of  malignant  eon  • 
duct.  In  such  a  case  I  feel  myself  bound,  not  only  by  the  general 
rule,  oh  continentiani  delicti,  but  by  the  direct  participation  of  guik, 
in  the  agents  of  the  cargo.  Their  own  innnediate  conduct  not  only 
excludes  all  favourable  distinction,  but  makes  them  pre-eminently  th/i 
object  of  just  punishment.  The  conclusion  therefore  is,  that  I  must 
pronounce  the  ship  and  cargo  subject  to  condemnation. 

"  The  court  observed  afterwards : — I  will  mention,  though  it  is  a  cir- 
cumstance of  no  great  consequence,  that  I  have  seen  the  dispatches 
in  this  case,  and  that  they  are  of  a  noxious  nature,  stating  the 
strength  of  the  different  regiments,  &c.,  and  other  particulars  en- 
tirely military." 


480  BELLIGEUEXTS    AND    NEUTRALS.  [PAKT  II. 


THE  "RAPID." 

High  Court  of  Admiualty,   1810. 

{Edwards.  228.) 

As  a  rule,  canying  dispatches  to  the  enemy  involves  the  confiscation  of  the 
shi])  :  but  where  the  master  denied  all  knowledge  of  the  presence  of  the  dis- 
patcli,  he  was  subjected  to  loss  of  expenses  and  time  only. 

This  was  the  case  of  an  American  ship  which  was  captured  on  her 
voyage  from  New  York  to  Tonningen,  on  suspicion  of  an  intention 
to  push  into  the  Texel.  But  the  question  of  destination  being 
abandoned  by  the  captors,  they  now  contended  that  the  case  came 
within  the  principle  laid  down  by  tlie  court  in  the  case  of  the  Ata- 
la/(ta,  as  it  had  been  discovered,  that  among  the  papers  given  up  by 
the  master  at  the  time  of  capture,  there  was  a  dispatcli  addressed  to 
tlie  Dutch  colonial  minister  at  tlie  Hague,  under  cover  to  a  commer- 
cial lionse  at  Tonningen. 

•Judgment, — Sir  William  Scott  : — 

'•  The  question  of  destination  being  disposed  of,  I  have  now  only 
to  consider  what  will  be  the  legal  effect  of  carrying  these  dis- 
patches ;  and  as  it  appears  that  the  practice  of  conveying  papers  of 
this  description,  for  the  enemy,  prevails  to  a  considerable  extent,  I 
must  take  occasion  to  remind  the  proprietors  of  neutral  vessels,  that 
wherever  it  is  indulged  without  sufficient  caution,  they  will  inevi- 
tably subject  themselves  to  very  grievous  inconveniences.  I  should 
certainly  be  extremely  unwilling  to  incur  the  imputation  of  im- 
poshig  any  restrictions  upon  the  correspondence  which  neutral  na- 
tions are  entitled  to  maintain  with  the  enemj'-,  or,  as  it  was  sug- 
gested in  argument,  to  lay  down  a  rule  which  would  in  effect  deter 
masters  of  vessels  from  receiving  on  board  any  private  letters,  as 
they  cannot  Ivuow  wliat  they  may  contain.  But  it  nuist  be  under- 
stood, that  where  a  party,  from  want  of  proper  caution,  suffers  dis- 
patches to  be  conveyed  on  board  his  vessel,  the  plea  of  ignorance 
will  not  avail  him.  His  caution  must  be  proportioned  to  the  cir- 
cumstances under  which  such  papers  are  received.  If  he  is  taking 
his  departure  from  a  hostile  port  in  a  hostile  country,  and  still  more, 
if  the  letters  which  are  brought  to  him  are  addressed  to  persons 
resident  in  an  hostile  country,  he  is  called  upon  to  exercise  the  ut- 
most jealousy  with  regard  to  what  papers  he  takes  on  board.    On 


CHAP.  in. J  THE  "i;ai'ii)."  481 

the  other  hand,  it  is  to  be  ohserved,  that  where  the  commencement 
of  the  voyag-e  is  in  a  neutral  coiniti'y,  and  it  is  to  terminate  at  a 
neutral  port,  or,  as  in  this  instance,  at  a  port  to  which,  tliough  not 
neutral,  an  open  trade  is  allowed,  in  such  a  case  there  is  less  to  ex- 
cite his  vigilance,  and,  therefoi-e,  it  may  be  proper  to  make  some  al- 
lowance for  any  imposition  which  may  be  practiced  upon  him.  l>nt 
when  a  neutral  master  receives  papers  on  l)oard  in  a  hostile  port,  lie 
receives  them  at  his  own  hazard  and  cannot  be  heard  to  aver  his 
ignorance  of  a  fact  which,  by  due  enquiry,  he  might  have  made  him- 
self acquainted  with.  The  party  in  the  present  case  has  the  benefit 
of  the  favourable  distinction  :  these  papers,  with  some  others,  were 
put  on  board  in  an  envelope,  addressed  to  a  person  at  Tonningen, 
who  w^as  instructed  to  for\^ard  them  to  Holland,  but  of  this  the 
master  swears  he  knew  nothing".  They  turn  out  to  be  of  a  i)ubliG 
nature,  conveying  intelligence  of  importance  to  the  government 
of  the  enemy  at  the  Hague,  and  they  begin,  I  observe,  with  an  as- 
sertion which  I  hope  is  not  true.  The  writer  says:  '  The  letter  and 
accompanying  inclosures  which  I  this  day  dispatch  to  His  Excel- 
lency, the  minister  of  the  colonies,  via  Tonningen,  will,  I  exjiect,  be 
connnunicated  to  you.  I  trust  my  condu  ;t  v.ill  be  approved  of  by 
His  Excellency,  and  that  he  will  please  explain  himself,  both  with 
regard  thereto,  as  also  respecting  the  contents  of  my  letter  to  the 
^Marshal  Daandels.  The  surest  mode  of  correspondence,  is  by  way 
of  England  or  Paris,  through  the  channel  of  the  Dutch  mmister,  as 
the  American  minister  will  not  refuse  to  inclose  for  him  a  letter  to  me 
in.  Ids  dispatches.''  This,  I  hope,  is  rashly  and  injuriously  said  ;  the 
court  cannot  bring  itself  to  believe,  that  the  accredited  minister  of  a 
country  in  amity  with  this  would  so  far  lend  himself  to  the  pur- 
poses of  the  enemy  as  to  be  the  private  instrument  of  conveying  the 
dispatches  of  the  enemy's  government  to  their  agent.  The  papers 
in  question  come  from  a  person  who  seems  to  be  invested  with 
something  of  a  public  character,  though  of  a  peculiar  kind,  and  thej 
are  upon  public  business,  but  I  do  not  know  whether  they  come- 
strictly  within  the  definition  of  dispatches.  The  writer  of  them  had 
been  sent  to  America  from  Batavia  by  the  governor,  to  beat  up  for 
volunteers  among  the  American  merchants,  in  the  hope  of  inducing 
them  to  embark  themselves  in  the  trade  of  that  settlement.  How 
far  he  had  been  acknowledged  by  the  American  government  does 
not  appear  ;  from  the  contents  of  the  papers  themselves  he  seems  to 
have  been  stationed  in  America,  not  by  the  government  of  Holland, 
but  by  the  Dutch  governor  of  Batavia,  rather  as  a  commercial  agent 
to  drive  a  bargain  with  individuals,  and  to  induce  them  to  join  in 
these  speculations  for  the  relief  of  the  Batavian  trade,  than  for  any 
31 


482  BELLIGERENTS    AND    NEUTRALS.  [rAl'.T  II. 

purposes  of  a  more  diplomatic  nature.  Ilis  commission  was  such 
that  it  n)ig'ht  exist  without  his  being-  acknowledg-ed  as  a  pubhc  ac- 
credited minister  by  the  American  government,  and  therefore  the 
claimant  is,  perhaps,  entitled  to  the  benefit  of  the  distinction  which 
has  been  taken,  that  these  papers,  though  mischievous  in  their  own 
nature,  proceed  from  a  person  who  is  not  clothed  with  any  public 
ofiicial  cbaracter.  Tbey  came  to  the  hands  of  this  American  master 
among  a  variety  of  other  letters  from  private  persons ;  they  were 
concealed  in  an  envelope,  addressed  to  a  private  person,  and  were 
taken  on  board  in  a  neutral  country;  these  are  circumstances  which 
would  rather  induce  the  court  to  consider  this  case  as  excepted  from 
the  general  rule  which  does  not  permit  a  neutral  master,  carrying 
dispatches  for  the  enemy,  to  shelter  himself  under  the  plea  of  ig- 
norance. In  the  present  instance  the  American  master  denies  all 
knowledge  of  the  contents  of  these  papers,  and  the  benefit  of  that 
denial  will  extend  to  the  cargo ;  it  is  not,  therefore,  a  case  in  which 
the  property  is  to  be  confiscated,  although  in  this,  as  in  every  other 
instance  in  which  the  enemy's  dispatches  are  found  on  board  a  ves- 
sel, he  has  justly  subjected  himself  to  all  the  inconveniences  of 
seizure  and  detention  and  to  all  the  expenses  of  those  judicial  in- 
quiries which  they  have  occasioned." 


THE  "MADISON." 

High  Court  of  Admiralty,  1810. 

{Edicards,  224.) 

Carrying  dispatches  from  an  enemy's  government  to  its  officials  in  a  neutral 
country  Ls  lawful ;  and  no  penalty  attaches  to  the  ship  therefor. 

The  following  are  extracts  from  the  judgment,  Sir  Wm.  Scott  : — 
"Now  I  am  of  opinion,  that  a  communication  from  the  Danish 
government  to  its  own  consul  in  America,  does  not  necessarily  im- 
ply anything  that  is  of  a  nature  hostile  or  injurious  to  the  interests 
of  this  country.  It  is  not  to  be  so  presumed;  such  communica- 
tions must  be  supposed  to  have  reference  to  the  business  of  the  con- 
sul-general's office,  which  is  to  maintain  the  commercial  relations  of 
Denmark  with  America.  If  sm  li  cominuiiications  wei'e  interdicted 
the  functions  of  the  official  persons  would  cease  altogether.  *  *  * 
"A  Danish  consul-general  in  Ameiica  is  not  stationed  there 
merely  for  the  purpose  of  Danish  trade,  but  of  Danish-American 


CHAP.  III.]  THE   "  OROZEMBO."  483 

trade ;  his  functions  relate  to  the  joint  commerce  in  which  the  two 
countries  are  engaged,  and  the  case,  therefore,  falls  within  the  prin- 
ciple which  has  been  laid  down  in  the  case  of  the  (JaroUiie  in  regard 
to  dispatches  from  the  enemy  to  his  ambassador  resident  in  a  neu- 
tral country." 


THE  "OROZEMBO." 

High  Court  of  Admiralty,  1807. 
(6  C.  Robinson,  430.) 

A  neutral  vessel  chartered  by  the  enemy  to  convey  military  persons  is  subject 
to  confiscation  as  engaged  in  an  unlawful  commerce. 

This  was  a  case  of  an  American  vessel  that  had  been  ostensibly 
chartered  by  a  merchant  at  Lisbon  "  to  proceed  in  ballast  to  3Iacao, 
and  there  to  take  a  cargo  to  America,"  but  which  had  been  after- 
wards, by  his  directions,  fitted  up  for  the  reception  of  three  military 
ofiBcers  of  distinction  and  two  persons  in  civil  departments  in  the 
government  of  Batavia,  who  had  come  from  Holland  to  take  their 
passage  to  Bataviu,  under  the  appointment  of  the  Government  of 
Holland. 

There  were  also  on  board  a  lady,  and  some  persons  in  the  capacity 
of  servants,  making  in  the  whole  seventeen  passengers. 

Judgment, — Sir  W.  Scott  : — 

"This  is  the  case  of  an  admitted  American  vessel ;  but  the  title  to 
restitution  is  impugned,  on  the  ground  of  its  having  been  employed, 
at  the  time  of  the  capture,  in  the  service  of  the  enemy,  in  transport- 
ing military  persons  first  to  Macao  and  ultimately  to  Batavia.  That 
a  vessel  hired  by  the  enemy  for  the  conveyance  of  military  persons 
is  to  be  considered  as  a  transport  subject  to  condemnation,  has  been 
in  a  recent  case  held  by  this  court,  and  on  other  occasions. 

"What  is  the  number  of  military  persons  that  shall  constitute 
such  a  case,  it  may  be  difficult  to  define.  In  the  former  case  there 
were  many,  in  the  present  there  are  much  fewer  in  number ;  but  I 
accede  to  what  has  been  observed  in  argument,  that  number  alone  is 
an  insignificant  circumstance  in  the  considerations,  on  which  the 
principle  of  law  on  this  subject  is  built,  since  fewer  persons  of  high 
quality  and  character  may  be  of  more  importance,  than  a  much 
greater  number  of  persons  of  lower  condition.  To  send  out  one  vet- 
eran general  of  France  to  take  the  command  of  the  forces  at  Batavia, 
might  be  a  much  more  noxious  act  than  the  conveyance  of  a  whole 


484  BELLIGERENTS   AND    NEUTRALS.  [PAHT  II. 

regiment.  The  consequences  of  such  assistance  are  greater;  and 
therefore  it  is  what  the  belligerent  has  a  stronger  right  to  prevent 
and  punish.  In  this  instance  the  military  persons  are  three,  and 
tliere  are,  besides,  two  other  persons,  ■who  were  going  to  be  employed 
in  civil  capacities  in  the  government  of  Batavia.  Whether  the  prin- 
ciple would  ap})ly  to  them  alone,  I  do  not  feel  it  necessarj''  to  deter- 
mine. I  am  not  aware  of  any  case  in  which  that  question  has  been 
agitated  ;  but  it  appears  to  me,  on  principle,  to  be  but  reasonable 
that,  whenever  it  is  of  sufficient  importance  to  the  enemy  that  such 
persons  should  be  sent  out  on  the  public  service,  at  the  public  ex- 
pence,  it  should  afford  equal  ground  of  foi-feiture  against  the  vessel 
that  may  be  let  out  for  a  purpose  so  intimately  connected  with  the 
hostile  operations. 

"  It  has  been  argued,  that  the  master  was  ignorant  of  the  charac- 
ter of  the  service  on  \Ahich  he  was  engaged,  and  that,  in  order  to 
support  the  penalty,  it  would  be  necessary  that  there  should  be  some 
proof  of  delinquency  in  him,  or  his  owner.  lUit,  I  conceive,  that  is 
not  necessary  ;  it  will  be  sufficient  if  there  is  an  injury  arising  to  the 
belligerent  from  the  employment  in  which  the  vessel  is  found.  In 
the  case  of  the  Swedish  vessel  there  was  no  Diens  rea  in  the  owner, 
or  in  any  other  person  acting  under  his  authorit}'.  The  master  was 
an  involuntary  agent,  acting  under  compulsion,  put  upon  him  by  the 
officers  of  the  French  government,  and,  so  far  as  intention  alone  is 
considered,  perfeclh/  inuoceitt.  In  the  same  mannei",  in  cases  of  bona 
fide  ignorance,  there  may  be  no  actual  delinquency,  but  if  the  service 
is  injurious,  that  will  l)e  sufficient  to  give  the  belligerent  a  right  to 
prevent  the  thing  from  being  done,  or  at  least  repeated,  l)y  enforcing 
the  penalty  of  confiscation.  If  imposition  has  been  practiced,  it 
operates  as  force;  and  if  redress  in  the  way  of  indemnification  is  to 
be  soiight  against  any  person,  it  must  be  against  those,  who  have,  by 
means  either  of  compulsion  or  deceit,  exposed  the  property  to  dan- 
ger. If,  therefore,  it  w-as  the  most  innocent  case  on  the  part  of  the 
master,  if  there  was  nothing  Avhatever  to  affect  him  with  privity,  the 
wdiole  amount  of  this  argument  would  be,  that  he  must  seek  Ids  re- 
dress against  the  freighter ;  otherwise  such  opportunities  of  convey- 
ance would  be  constantly  used,  and  it  would  be  almost  impossible,  in 
the  greater  number  of  cases,  to  prove  the  knowledge,  and  privity  of 
the  immediate  offender. 

"  It  has  been  argued  throughout,  as  if  the  ignorance  of  the  master 
alone  would  be  sufficient  to  exempt  the  property  of  the  owner  from 
confiscation.  But  may  there  not  be  other  persons,  besides  the  mas- 
ter, whose  knowledge  and  privity  would  carry  with  it  the  same 
consequences  ? 


CHAP,  in.]  THE   "OROZEMBO."  485 

"  Suppose  the  owner  himself  hud  knowledge  of  the  engagement, 
would  not  thiit  produce  the  raens  rea,  if  such  a  thing  is  necessary  V 
or  if  those  who  had  been  employed  to  act  for  the  owner,  had  thought 
tit  to  engage  the  ship  in  a  service  of  lliis  nature,  keeping  the  master 
in  profound  ignoran(;e,  would  it  not  he  just  as  effectual,  if  the  meiiH 
red  is  necessary,  that  it  should  reside  in  those  persons,  as  in  the 
owner  ? 

"  The  observations  which  I  shall  have  occasion  to  make  on  the  re- 
maining parts  of  this  case  will,  perhaps,  appear  to  justify  such  a 
supposition,  either  that  the  owner  himself,  or  those  who  acted  for 
him  in  Lisbon  or  in  Holland,  were  connusant  of  the  nature  of  the 
whole  transaction.  But  I  will  first  state  distinctly,  that  the  prin- 
ciple on  which  I  determine  this  case  is,  that  the  carrying  military 
persons  to  the  colony  of  an  enemy,  who  are  there  to  take  on  them 
the  exercise  of  their  military  functions,  will  lead  to  condemnation, 
and  that  the  court  is  not  to  scan  with  minute  arithmetic  the  number 
of  persons  that  are  so  carried.  If  it  has  appeared  to  be  of  sufficient 
importance  to  the  government  of  the  enemy  to  send  them,  it  must 
be  enough  to  put  the  adverse  government  on  the  exercise  of  their 
right  of  prevention ;  and  the  ignorance  of  the  master  can  afford  no 
ground  of  exculpation  in  favour  of  the  owner,  who  must  seek  his 
remedy  in  cases  of  deception,  as  well  as  of  force,  against  those  v:\io 
have  imposed  upon  him."  ^ 

'  See  the  cases  of  the  Friendship,  6  C.  Rob.,  420  ;  and  the  Caroline,  4  C.  Eob., 
256. 

In  all  these  cases  the  offense  is  rather  the  engagement  of  the  vessel  as  an 
enemy  transport  than  the  mere  carrying  of  hostile  persons  as  passengers. 

In  a  note  to  tlie  case  of  the  Friendship,  Dr.  Robinson  says  :  '•  The  act  of  car- 
rying the  soldiers  of  the  enemy  has  been  in  former  wars  assimilated  to  contra- 
band, by  pvibUc  proclamation  and  instructions,  and  has  been  declared  to  render 
the  ship  liable  to  condemnation.  The  declaration  of  war,  25th  March,  1744, 
concludes  with  the  following  clause  : 

"'And  we  do  hereby  command  our  own  subjects,  and  advertise  all  other 
persons  of  whatever  nation  soever,  not  to  transport  or  carry  any  soldiers,  arms, 
powder,  ammunition,  or  other  contraband  goods,  to  any  of  their  teiTitories, 
lands,  plantations,  or  countries  of  the  said  French  king,  declaring,  that  whatso- 
ever ship  or  vessel  shall  be  met  withal  transporting  or  carrying  any  sol- 
diers, arms,  powder,  ammunition,  or  other  contraband  goods,  etc.  *  *  *  ^ 
the  same  being  taken,  shall  be  condemned  as  good  and  lawful  prize.' 

"  The  same  declaration  is  also  inserted  in  the  second  article  of  the  instruction 
to  cruisers,  of  the  same  date  ;  also  in  the  second  article  of  the  instructions  ir 
the  war  with  Spain,  20th  Dec,  1768." 


48G  BELLIGEIIEXTS    A^'D   ^'EUTHALS.  [PAE-T  II. 


THE  "TREXT,"  ISGl. 

(Lau'rcnce's  'iMieatoii,  939  ;  Dana's  ^M^eaton,  644.) 

Tlie  Trent  was  carrying,  as  passengers,  Messrs.  Mason  and  Slidell,  agents  of 
the  Confederate  Government,  between  the  neutral  ports  of  Havana  and  St. 
Thomas  ;  when  these  passengers  were  forcibly  removed  by  Captain  Wilkes  of 
the  United  States  steamer  San  Jacinto.  Mr.  Seward  admitted  that  these  persons 
could  not  be  lawfully  taken  from  the  Trent  at  sea,  but  contended  that  she  might 
have  been  brought  in  as  prize. 

At  an  earl}'  stage  of  the  civil  war  in  the  United  States,  in  October, 
18G1,  the  Confederate  Government  appointed  INIr.  Mason  to  England 
and  Mr.  Slidell  to  France,  each  with  a  secretary,  to  act  as  commis- 
sioners or  ambassadors  to  those  countries.  The  government  had 
not  been  recognized  by  any  nation,  and  conld  not  maintain  diplomatic 
relations  ;  but  it  had  been  recognized  as  a  lawful  belligerent.  The 
object  of  the  mission  of  Mason  and  Slidell  was  to  aid  the  insurgent 
government  by  all  means  in  their  power ;  to  urge  its  recognition  by 
the  European  States  ;  to  effect  treaties  of  commerce  or  alliance ;  to 
procure,  if  desired  by  their  government,  the  intervention  of  European 
powers. 

It  may  be  said  to  have  been  essential  that  these  agents  should 
make  the  passage  under  neutral  flags.  They  succeeded  in  running 
the  blockade  in  fast  steamers  to  Havana.  At  Havana  they  took 
passage,  on  their  way  to  Europe,  in  a  British  steamer,  the  Trent, 
bound  from  Havana  to  St.  Tliomas,  from  ^^ilich  latter  place  a  regular 
line  of  steamers,  connecting  witli  the  Trtnt,  ran  to  England.  The 
Trent  carried  the  regular  mails  from  the  South  American  continent 
and  Cuba  to  England,  to  transfer  them  at  St.  Thomas  to  the  next 
steamer  on  the  route.  She  had  a  large  number  of  passengers,  most 
of  whom  were  also  bound  to  England.  jMessrs.  Mason  and  Slidell, 
and  their  secretaries,  had  disi)atches  and  instructions  from  their  own 
government,  which  were  under  their  personal  charge. 

On  the  high  seas,  nine  miles  from  the  coast  of  Cuba,  she  was 
stopped  and  searched  by  the  United  States  steamer  San  Jacinto, 
Captain  Wilkes. 

Messrs.  Mason  and  Slidell  were  found  on  board  ;  but  the  dispatches 
they  seci'eted,  and  confided  to  some  of  the  passengers  to  be  taken  to 
Europe.  Tliei-e  was  no  evidence  or  cliarge  tliat  the  commander  of 
the  2Ve//<  aided  in  the  concealment  or  forwarding  of  these  dispatches. 


CHAP.  III.]  THE    ''TltENT."  487 

He  did,  liowever,  deny  the  rig-lit  of  search,  refused  all  facilities  for 
it,  and  o])structed  it  by  everything  but  actual  force;  and  made  it 
known  to  Captain  Wilkes  that  he  yielded  only  to  superior  power, 
and  that,  if  made  a  prize,  he  and  his  crew  would  lend  no  aid  in  carry- 
ing the  Trent  into  port.  Captain  Wilkes  took  IMessrs.  Mason  and 
Slidell  and  their  suite  from  the  Trent,  permitted  her  to  proceed  on 
her  passage,  and  carried  his  prisoners  to  the  United  States. 

Earl  Russell,  in  his  demand  upon  the  United  States  Government 
(letter  to  Lord  Lyons,  Xov.  30,  ISGl),  stated  the  proceeding  as  simply 
a  case  of  a  forcible  taking  of  four  passengers  from  an  innocent 
British  vessel  at  sea  by  an  American  ship  of  war,  making  no  refer- 
ence to  their  ofl&cial  character,  or  even  to  their  nationality.  Mr. 
Seward's  reply  (letter  to  Lord  Lyons  of  Dec.  29,  1861)  goes  at  length 
into  the  subject.  He  considers,  first,  whether  these  persons  were, 
as  he  terms  it,  contraband  of  war.  He  cites  Vattel  as  saying,  "  War 
allows  us  to  cut  off  from  our  enemy  all  his  resources,  and  to  hinder 
him  from  sending  ministers  to  solicit  assistance,"  and  Sir  William 
Scott,  as  saying,  "  You  may  stop  the  ambassador  of  your  enemy  on 
his  passage,"  and  applies  the  test,  in  the  words  of  Sir  William  Scott, 
"  If  it  is  of  sufficient  importance  to  the  enemy  that  such  persons 
should  be  sent  out  on  the  puldic  service  at  the  public  expense,  it 
should  afford  equal  ground  of  forfeiture  of  the  vessel  that  may  be 
let  out  for  a  purpose  so  intimately  comiected  with  the  hostile  o[)era- 
tions :  "  and  he  comes  to  the  conclusion,  that  these  persons  were, 
from  the  nature  of  their  office  and  destination,  contraband. 

Assuming,  then,  which  was  not  denied,  that  Captain  Wilkes  had  a 
right  to  visit  and  search  the  Trent,  as  an  act  of  maritime  belligerency, 
and  showing  that  he  exercised  the  right  of  search  in  a  proper  man- 
ner, he  examines  the  last  question,  whether  the  taking  of  these  per- 
sons out  of  the  ship,  by  Captain  AVilkes,  was  justifiable,  under  the 
accepted  law  of  nations. 

He  at  once  disclaims,  what  Lord  Russell  assumed  to  be  the  ground 
of  the  act,  a  right  to  take  rebels  or  other  criminals  or  enemies,  as 
such,  from  a  neutral  vessel,  as  an  exercise  of  ocean  police.  He  states 
that  the  whole  course  of  Captain  Wilkes  was  in  the  exercise  of  a 
belligerent  right  of  search  and  capture.  In  this  connection,  he 
alludes  to  the  claim  long  made  and  enforced  by  Great  Britain,  and 
resisted  by  us,  of  a  right  to  take  her  own  seamen  from  American 
vessels.  As  such  seamen  are  not  enemies,  nor  enemy's  property,  nor 
contraband,  the  exercise  of  that  power  was  simply  an  exercise  of 
ocean  police,  for  municipal  })urposes,  over  vessels  of  a  foreign  country. 

He  treats  this  reclamation  of  Lord  Russell  as  a  renunciation  of 
such  a  claim  in  the  future  by  Great  Britain ;  and  agrees,  that,  if  such 


488  BELLIGERENTS   AND   NEUTllALS.  [I'AET  II. 

had  been  the  character  of  Captain  Wilkes's  act,  it  would  liave  been 
indefensible.  Having-  resolved  the  question  of  contraband  in  favor 
of  the  captors,  he  proceeds  to  discuss  the  rights  and  duties  of  a 
cruiser  which  finds  contraband  persons  on  board  of  a  neutral  vessel. 
lie  contends  that  it  is  clearly  the  i-ig-ht  and  duly  of  the  cruiser  to 
make  the  vessel  a  prize,  and  send  her  in  for  adjudication.  He 
adverts  to  the  fact  that,  in  such  cases,  the  prize  proceedings  can 
only  be  against  the  vessel.  A  prize  court  is  not  competent  to  decide 
abstractly  upon  the  character  of  persons  on  bcKird,  and  decree  them 
to  be  either  })rize  or  prisoners  of  Avar.  Its  only  function  is  to  pro- 
nounce on  property,  whether  it  be  prize  or  no  prize;  and  it  passes 
upon  the  status  and  character  of  persons,  only  as  means  of  deter- 
mining the  status  and  predicament  of  the  res.  He  remarks  upon  the 
unsatisfactory  nature  of  such  a  circuitous  proceeding  as  a  mode  of 
determining  the  character  and  fate  of  persons,  owing  to  the  liability 
of  a  defeat  of  the  purpose  by  the  accidents  and  incidents  of  all  trials. 
The  vessel  may  be  restored  or  condemned  on  grounds  independent 
of  the  character  of  the  persons  in  question.  The  prize  court  has  no 
power  directly  to  control  the  persons  found  on  board,  after  their 
evidence  is  given,  or  to  restore  them  to  the  claimants  ;  so  that,  after 
all,  the  question  must  be  left  to  diplomacy. 

Still,  he  considers  that  this  process,  though  unsatisfactory,  is  all 
that  the  laws  of  war  have  provided,  unless  the  cruiser  can  take  the 
contraband  persons  from  the  vessel  Jfrre  belli,  leaving  her  to  proceed 
on  her  course. 

As  to  such  a  right,  he  says  that  the  United  States  have  always 
denied  its  existence,  and  that  to  claim  it  in  this  instance,  would  be 
to  reverse  the  whole  course  of  our  history.  After  pointing  to  the 
evils  that  might  follow  the  exercise  of  the  right,  he  says,  "I  think 
all  unprejudiced  minds  will  agree,  that,  imperfect  as  the  present 
judicial  remedy  may  be  supposed  to  be,  it  Avould  be,  as  a  general 
practice,  better  to  follow  it  than  to  adopt  the  summary  one  of  leav- 
ing the  decision  with  the  captor,  and  relying  u^x))!  diplomatic  debate 
to  review  his  decision."  Had  the  act  of  Captain  Wilkes,  thei'cfore, 
\>een  for  the  purpose  of  taking  C(mtral)and  persons  out  of  a  neutral 
vessel,  it  would  have  been  disclaimed.  But,  having  been  for  the 
purpose  of  making  a  prize  of  the  vessel,  with  the  contraband  persons 
on  board,  ]Mr.  Seward  next  proceeds  to  consider  the  effect  of  the 
release  of  the  vessel. 

He  ol)serves  upon  the  fact  that  it  was  not  a  case  in  which,  at  the 
request  or  with  the  consent  of  the  neutral,  what  had  been  seized 
was  surrendered  to  the  captors,  upon  a  release  of  the  vessel.  The 
master  of  the  Trent  made  no  request  or  assent ;  and  the  release  was 


CHAP.  III.]  THE    "  TRENT."  489 

the  act  of  Captain  Wilkes  solely.  Mr.  Seward  then  refers  to  llie 
exceptions  to  the  rule  that  the  captor  must  send  in  his  prize  for 
adjudication,  and  finds  them  all  to  be  cases  of  substantial  necessity, 
excusing-  the  performance  of  what  is  else  a  duty.  lie  then  examines 
the  statements  of  Captain  "Wilkes  as  to  the  motives  which  induced 
him  to  release  the  vessel,  and  finds  that  he  was  governed  maiidy  by 
a  desire  to  relieve  the  large  number  of  passengers,  and  an  unwilling- 
ness to  subject  the  mails  to  the  delays  consequent  upon  the  scnding- 
in  of  the  vessel ;  although  it  also  appeared  that  the  want  of  force  to 
bring  in  both  vessels,  conveniently  and  safely,  operated  somewhat 
upon  his  mind.  JMr.  Seward  concludes  that,  while  the  comity  of 
Captain  Wilkes,  and  his  willingness  to  relinquish  for  himself  and 
his  crew  their  large  possible  interest  as  captors,  are  to  be  ap[)lau(I('d, 
he  did  in  fact,  without  being  aware  of  it,  take  a  step  which  made 
the  detention  and  bringing  in  of  Mason  and  Slidell  unjustifiable, 
under  those  rules  of  war  for  which  the  United  States  have  argued, 
negotiated,  and  fought. 

Mr.  Seward  concludes  by  declaring  that  the  persons  in  question, 
held  as  prisoners  of  war,  would  be  liberated. 

By  an  arrangement  between  Mr.  Seward  and  Lord  Lyons,  they 
were  placed  on  board  an  English  war  vessel,  which  took  them  to 
St.  Thomas,  the  port  of  destination  of  the  Trent ;  thus  ])lacing 
things,  as  far  as  possible,  in  statu  quo  ante. 

Earl  Russell,  in  his  letter  to  Lord  Lyons,  of  Jan.  2.3,  1862,  reviews 
the  letter  of  Mr.  Seward  on  the  point  of  the  contraband  character  of 
Messrs.  Mason  and  Slidell,  and  comes  to  a  different  result.  As  the 
affair  was  now  settled,  this  letter  was  for  the  purpose  of  precluding 
an  inference,  in  case  of  silence,  that  he  agreed  to  Mr.  Seward's  posi- 
tion. He  places  his  argument  on  two  grounds, — -first.,  that  the  office 
and  character  of  the  persons  detained  were  not  such  as  to  make 
them  contraband ;  and  second,  that,  if  contraband  in  the  abstract, 
they  were  not,  on  board  the  Trent,  contraband  in  such  a  sense  as  to 
involve  her  in  any  penalties,  since  her  passage  was  between  neutral 
ports. 

On  the  first  point,  Earl  Russell  contends  that  Messrs.  ]\rason  and 
Slidell  have  the  protection  which  is  accorded  to  diplomatic  agents, 
by  the  decisions  of  Sir  William  Scott.  He  argues  that  this  })rotecti()n 
cannot  be  confined  to  persons  who  have  been  already  received  as 
diplomatic  agents,  or  persons  sent  from  regularly  recognized  sover- 
eignties. The  nations  of  Europe  having  recognized  the  Confederate 
Government  as  belligerent,  and  their  subjects  having  many  impor- 
tant rights  of  person  or  property  under  the  control  of  that  de  facto 
government,  and  the  recognition  of  belligerency  carrying  with  it 


490  BELLIGERENTS    AND    NEUTRALS.  [I'ART  II. 

rights  as  well  as  duties,  neutral  nations  have  an  interest  in  such 
imperfect  diplomatic  relations  as  they  ma}^  maintain  with  commis- 
sioners or  other  diplomatic  agents  from  such  <^?e/ac<o  governments. 
"  It  appears  to  Her  Majesty's  Government  to  be  a  necessary  and 
certain  deduction  from  these  principles,  that  the  conveyance  of  pub- 
lic agents  of  this  character  on  their  way  to  Great  Bi'itain  and 
France,  and  of  their  credentials  and  dispatches  (if  any),  was  not, 
and  could  not  be,  a  violation  of  the  duties  of  neutrality." 


Sectiox  4G. — Blockade. 


THE  "XEPTUXUS." 
High  Coukt  of  Admiralty,  1799. 
(2  C.  Robinson,  110.) 
Blockade  by  notice,  and  blockade  de  facto.     When  is  notice  required  ? 

This  was  a  case  of  a  vessel  sailing  on  a  voyage  from  Dantziek  to 
Havre,  2Gth  October,  1798,  and  taken  in  attemptmg  to  enter  that 
port  on  '26111  Xovember. 

Judgment, — Sir  Wm.  Scott  : — 

"This  is  a  case  of  a  ship  and  cargo  seized  in  the  act  of  entering 
the  port  of  Havre  in  pursuance  of  the  original  intention  under  which 
the  voyage  began.  The  notification  of  the  blockade  of  that  port 
was  made  on  the  2.3d  January,  1798,  and  this  transaction  happened 
in  Xovember  in  that  year ;  the  effect  of  a  notification  to  any  foreign 
government  would  clearly  be  to  include  all  the  individuals  of  that 
nation ;  it  would  be  the  most  nugatory  thing  in  the  world,  if  indi- 
viduals were  allowed  to  jDlead  their  ignorance  of  it ;  it  is  the  duty  of 
foreign  governments  to  communicate  the  information  to  their  sub- 
jects, whose  interests  the}'^  are  bound  to  protect.  I  shall  hold  there- 
fore that  a  neutral  master  can  never  be  heard  to  aver  against  a 
notification  of  blockade,  that  he  is  ignorant  of  it.  If  he  is  really 
ignorant  of  it,  it  may  be  a  subject  of  representation  to  his  own  gov- 
ernment, and  may  raise  a  claim  of  compensation  from  them,  but  it 
can  be  no  plea  in  the  court  of  a  belligerent.  In  the  case  of  a  block- 
ade de  facto  only,  it  may  be  otherwise,  but  this  is  the  case  of  a 
blockade  by  notification  ;  another  distinction  between  a  notified 
blockade  and  a  blockade  existing  de  facto  only,  is  that  in  the  former, 


CHAP.  III.]  THE    "  NErTUXUS."  41)i 

the  act  of  sailinj;^  to  a  Ijloekadod  place  is  sufficient  to  constitute  the 
offence.  It  is  to  be  jiiesunied  that  the  notification  will  be  formally 
revoked,  and  th.it  due  notice  will  be  given  of  it;  till  that  is  done, 
the  port  is  to  be  considered  as  closed  up,  and  from  the  moment  of 
quitting  port  to  sail  on  such  a  destination,  the  offence  of  violating 
the  blockade  is  complete,  and  the  property  engaged  in  it  subject  to 
confiscation :  it  ma}'  be  different  in  a  blockade  existing  de  facto 
only ;  there  no  presumption  arises  as  to  the  continuance,  and  the 
ignorance  of  the  party  may  be  admitted  as  an  excuse,  for  sailing  on 
a  doubtful  and  provisional  destination.  JJut  this  is  a  case  of  a  ves- 
sel from  Dantzick  after  the  notification,  and  the  master  caimot  be 
heard  to  aver  his  ignorance  of  it.  He  sails : — till  the  moment  of 
meeting  Admiral  Duncan's  fleet,  I  should  have  no  hesitation  in  say- 
ing, that,  if  he  liad  been  taken,  he  would  have  been  taken  in  delicto, 
and  have  subjected  his  vessel  to  confiscatiou ;  but  he  meets  Admiral 
Duncan's  fleet,  and  is  examined,  and  liberated  by  the  captain  of  an 
English  frigate  belonging  to  that  fleet,  who  told  him  that  he  might 
proceed  on  his  destination,  and  wdio,  on  being  asked,  "Whether 
Havre  was  under  a  blockade?  said,  'it  was  not  blockaded,'  and 
wished  him  a  good  voyage.  The  question  is,  In  what  light  he  is  to 
be  considered  after  receiving  this  information?  That  it  was  io;/rt 
jide  given  cannot  be  doubted,  as  they  w-ould  otherwise  have  seized 
the  vessel;  the  fleet  must  have  been  ignorant  of  the  fact;  and  I 
have  to  lament  that  they  were  so :  When  a  blockade  is  laid  on,  it 
ouglit  by  some  kind  of  communication  to  be  made  known  not  only 
to  foreign  governments,  but  to  the  King's  subjects,  and  particularly 
to  the  King's  cruisers;  not  only  to  those  stationed  at  the  blockaded 
ports,  but  to  others,  and  especially  considerable  fleets,  that  are  sta- 
tioned in  itinere,  to  such  a  port  from  the  different  trading  coun- 
tries that  may  be  supposed  to  have  an  intercourse  with  it. 

"Perhaps  it  would  have  been  safer  in  the  English  captain  to  have 
answered,  that  lie  could  not  say  anything  of  the  situation  at  Havre; 
but  the  fact  is  (and  it  has  not  been  contradicted),  that  the  British 
officer  told  the  master  'that  Havre  was  not  blockaded.'  Under 
these  circumstances,  I  think  that  after  this  information  he  is  not 
talfen  in  delicto.  I  do  not  mean  to  say  that  the  fleet  could  give  the 
man  any  authority  to  go  to  a  blockaded  port;  it  is  not  set  up  as  an 
authority,  but  as  intelligence  affording  a  reasonable  gi'ound  of  be- 
lief;  as  it  could  not  be  supposed,  that  such  a  fleet  as  that  was,  would 
be  ignorant  of  the  fact. 

"  V\o\\\  that  time  I  consider  that  a  state  of  innocence  commences; 
the  man  was  not  only  in  ignorance,  but  had  received  positive  infor- 
mation that  Havre  was  not  blockaded.     Under  these  circumstances, 


492  BELLIGERENTS    AND   NEUTRALS.  [PART  IL 

I  think  it  woukl  bo  a  little  too  hard  to  press  the  former  offence 
against  him ;  it  wotild  he  to  press  a  pretty  strong  principle  rather 
too  strongly;  I  think  I  cannot  look  retrospectively  to  the  state  in 
which  he  stood  before  the  meeting  with  the  Ih-itish  fleet,  and  there- 
fore 1  shall  direct  this  vessel  and  cargo  to  be  restored." 


THE  "BETSY." 

Ilion  CouiJT  OF  Admiralty,  1798. 

(1  C.  Robinson,  92  a.) 

A  declaration  of  blockade  by  a  commander,  without  an  actual  investment,  will 
not  constitute  a  blockade. 
AVliat  constitutes  a  breach  of  blockade  ? 

Extract  from  judgment, — Sir  W.  Scott: — 

"On  the  question  of  blockade  three  tlihigs  must  be  proved :  1st, 
the  existence  of  an  actual  blockade ;  "idly,  the  knowledge  of  the 
l)arty ;  and,  odly,  some  act  of  violation,  either  by  going  in,  or  by 
coming  out  with  a  cargo  laden  after  the  commencement  of  blockade. 
The  time  of  shipment  would  on  this  last  point  be  very  material,  for 
although  it  might  be  hard  to  refuse  a  neutral  liberty  to  retire  with 
a  cargo  already  laden,  and  by  that  act  already  become  neutral  proj)- 
erty ;  yet,  after  the  commencement  of  a  blockade,  a  neutral  cannot, 
I  conceive,  be  allowed  to  interpose  in  any  way  to  assist  the  exporta- 
tion of  the  propert}^  of  the  enemy.  After  the  commencement  of  the 
blockade,  a  neutral  is  no  longer  at  libertj^  to  make  any  purchase  in 
that  port. 

"It  is  necessary,  however,  that  the  evidence  of  a  blockade  shduld 
be  clear  and  decisive :  but  in  this  case  there  is  only  an  affidavit  of 
one  of  the  captors,  and  the  account  which  is  there  given  is,  '  that  on 
the  ari-ival  of  the  Britisli  forces  in  the  West  Indies,  a  proclamalion, 
inviting  the  hdiabitants  of  3Iarliiiique,  St.  Lucie,  and  Guadaloupe 
to  put  tliemselves  under  the  i)rotection  of  the  English;  that  on  a  re- 
fusal, hostile  operations  were  commenced  against  them  all;'  but  it 
cannot  be  meant  that  they  began  immediately  against  all  at  once; 
for  it  is  notorious  that  they  were  directed  against  them  separately 
and  in  succession.  It  is  further  stated,  'that  in  January,  1794  (l)ut 
without  any  more  precise  date),  Guadaloupe  was  summoned,  and 
was  tlien  put  into  a  state  of  complete  investment  and  blockade.' 

"The  M'ord  complete  is  a  word  of  great  energy ;  and  we  might  ex- 
pect from  it  to  find,  that  a  number  of  vessels  were  stationed  round 


CHAT,  in.]  THE.  "BETSY."  493 

the  entrance  of  the  port  to  cut  olf  all  eonnnnnication :  hnt,  from  the 
protest,  T  perceive  that  the  cajjlors  entertained  hnt  a  vei-y  loose  no- 
tion of  the  true  nature  of  a  blockade  ;  for  it  is  there  stated,  '  that  on 
the  1st  of  January,  after  a  general  proclamation  to  tlie  French 
islands,  they  were  put  into  a  state  of  couipUte  blockade.'  It  is  a 
term,  therefore,  which  was  applied  to  all  those  islands  at  the  same 
time,  under  the  first  proclamation. 

"The  Lords  of  Appeal  have  determined  that  such  a  proclamation 
was  not  in  itself  sufficient  to  constitute  a,  legal  blockade :  it  is  clear, 
indeed,  that  it  could  not  in  reason  be  sufficient  to  produce  the  effect, 
which  the  captors  erroneously  ascribed  to  it :  but  from  the  misap- 
plication of  these  phrases  in  one  instance,  I  learn,  that  we  must  not 
give  too  much  weight  to  the  use  of  them  on  this  occasion  ;  and,  from 
the  generality  of  these  expressions,  I  think,  we  must  infer,  that 
there  was  not  that  actual  blockade  wliich  the  law  is  now  distinctly 
understood  to  require. 

"J3ut  it  is  attempted  to  raise  other  inferences  on  this  point,  from 
the  manner  in  which  the  master  speaks  of  the  difficulty  and  danger 
of  entering;  and  from  the  declaration  of  the  municipality  of  Cuada- 
loupe,  which  states  '  the  island  to  have  been  in  a  state  of  siege.'  It 
is  evident  the  American  master  speaks  only  of  the  difficulty  of  avoid- 
ing the  English  cruisers  generally  in  those  seas ;  and  as  to  the  other 
phrase,  it  is  a  term  of  the  new  jargon  of  France,  which  is  sometimes 
applied  to  domestic  disturbances ;  and  certainly  is  not  so  intelligible 
as  to  justify  me  in  concluding,  that  the  island  was  in  a  state  of  in- 
vestment, from  a  foreign  enemy,  which  we  require  to  constitute 
blockade:  I  cannot,  therefore,  lay  it  down,  that  a  blockade  did  exist, 
till  the  operations  of  the  forces  were  actually  directed  against  Gua- 
dalon[)e  in  April. 

"  It  would  be  necessary  for  me,  however,  to  go  much  farther,  and 
to  say  that  I  am  satisfied  also  that  the  parties  had  knowledge  of  it : 
but  this  is  expressly  denied  by  the  master.  He  went  in  without  ob- 
struction. Mr.  Incledon's  statement  of  his  belief  of  the  notoriety  of 
the  blockade  is  not  such  evidence  as  Avill  alone  be  sufficient  to  con- 
vince me  of  it.  With  respect  to  the  shipment  of  the  cargo,  it  does 
not  appear  exactly  under  what  circumstances  or  what  time  it  was 
taken  in :   I  shall  therefore  dismiss  this  part  of  the  case.     *     *    *  " 


4y4  I3ELLIGEEENTS   A^'D   i\EUTi:-U.S.  [rAllT  IL 


THE  "XAXCY." 

Ppjvy  Council,  1809. 

(1  Acto)i,  57.) 

If  the  blockading  fleet  is  temporarily  absent  from  the  port  blockaded,  in  order 
to  accomplish  other  objects,  no  j^enalty  attaches  to  a  ship  which  enters  and 
leaves  the  port  during  such  absence. 

This  was  a  case  of  several  appeals  from  Vice- Admiralty  Courts  in 
America  and  the  West  Indies,  condemning  the  sliips  and  cargoes  for 
a  breach  of  the  blockade  of  the  island  of  ^Martinique,  in  the  year 
1804 

A  ship,  belonging  to  American  citizens,  sailed  from  Xew  York  for 
St.  Pierre,  in  Martinique,  iniless  the  same  should  be  blockaded.  If 
the  island  should  be  blockaded,  the  master  was  to  go  to  St.  Thomas, 
whence  he  was  to  return  to  New  York  with  a  cargo  purchased  with 
the  proceeds  of  the  outward  cargo. 

Arriving  off  Martinique  the  29th  of  March,  and  finding  no  ship 
there,  and  not  being  given  to  understand  that  there  existed  any 
blockade  at  that  time,  he,  in  consequence  of  the  vessel's  having 
sprung  a  leak,  repaired  to  the  port  of  Trinity,  in  that  island,  to  refit ; 
from  whence  he  sailed  to  St.  Pierre,  arriving  the  3d  of  April. 

"While  in  the  island  he  heard  of  no  blockade,  and  no  vessel  of  war 
had  appeared  off  the  island  during  his  stay. 

Having  completed  his  cargo  on  the  loth,  he  sailed  for  Xew  York, 
and  was  captured  and  carried  into  Halifax,  in  Nova  Scotia,  where 
the  vessel  and  cargo  were  condemned  as  prize. 

This  statement  was  supported  by  the  evidence  of  a  passenger  on 
board  the  vessel,  by  some  of  the  crew,  and  by  the  tenor  of  a  cor- 
respondence between  persons  in  France,  New  York,  and  Martinique; 
which  proved  that  the  blockade  was  at  that  time  removed,  or  left  so 
far  relaxed  that  no  armed  vessels  had  been  seen  off  these  ports  dur- 
ing the  period  the  vessel  remained  in  the  island. 

For  the  captors  it  was  contended  that,  although  the  blockading 
fleet  had  been  dispatched  to  Surinam,  a  force  had  been  left  off  tlie 
island  to  continue  the  blockade  and  apprise  vessels  of  its  existence. 
This  appeared,  even  by  the  correspondence  exhibited  b}'  the  claim- 
ants, one  of  the  letters  admitting  that  a  British  fifty-gun  ship  con- 
tinued off  the  island,  and  was  now  and  then  seen  by  the  inhabitants. 


CHAP,  in.]  THE   "'  OCEAN."  405 

Judgment : — 

The  court  held  that,  to  constitute  a  blockade,  the  intention  to  shut 
up  the  port  should  not  only  be  generally  made  knowii  to  the  vessels 
navigating  the  seas  in  the  vicinity,  but  that  it  was  the  duty  of  the 
blockaders  to  maintain  such  a  force  as  would  be  of  it.elf  sufficient 
to  enforce  the  blockade.  This  could  only  be  effected  l)y  keei)ing  a 
number  of  vessels  on  the  different  stations,  so  communicating  with 
each  other  as  to  be  able  to  intercept  all  vessels  attempting  to  enter 
the  ports  of  the  island.  In  the  present  instance  no  such  measures 
had  been  resorted  to,  and  this  neglect  necessarily  led  neutral  vessels 
to  believe  these  ports  might  be  entered  without  any  risk.  The  peri- 
odical appearance  of  a  vessel  of  war  in  the  offing  could  not  be  sup- 
posed  a  continuation  of  a  blockade,  which  the  correspondence  men- 
tioned had  described  to  haA^e  been  previously  maintained  by  a 
number  of  vessels  ;  and  ^^•ith  such  unparalleled  rigor,  that  no  vessel 
whatever  had  been  able  to  enter  the  island  during  its  continuance. 
Their  Lordships  were  therefore  pleased  to  order  that  the  ship  should 
be  restored,  the  proof  of  property  being  sufficient,  but  directed  fur- 
ther proof  as  to  the  cargo  claimed  for  the  American  citizens 
mentioned. 


THE  "OCEAX." 
High  Court  of  Admiralty,  1801. 

(3  C.  Robinson,  297.) 

Merchandise  going  by  land  or  inland  navigation  from  a  l^lockaded  port,  and 
shipped  from  a  port  not  blockaded,  is  not  subject  to  confiscation  for  breach  of 
blockade. 

This  was  a  question  arising  on  the  blockade  of  Amsterdam,  re- 
specting a  cargo  shipped  for  America  at  Rotterdam.  It  appeared 
that  the  persons  ordering  the  shipment  had  ordered  it  of  their 
agents  at  Amsterdam,  as  a  shipment  to  be  made  there^  subsequent 
to  the  date  of  the  blockade  of  that  place,  but  previous  to  tlte  block- 
ade of  the  ports  of  Holland.  It  was  argued  that  in  the  intention  of 
the  claimants  it  was  to  be  an  exportation  actually  from,  Amsterdam, 
and  that  in  effect  the  trade  was  the  same,  as  the  goods  were  ordered 
and  purchased  at  Amsterdam,  and  were  to  be  considered  as  part  of 
the  commerce  of  that  place. 

Judgment, — Sir  W .  Scott  : — 

"  I  am  inclined  to  consider  this  matter  favourably,  as  an  exporta- 
tion from  Rotterdam  only,  the  place  in  which  the  cargo  becomes 


49G  BELLIGERENTS    AND    NEUTRALS.  [PART  IT. 

first  connected  with  the  ship.  In  wliat  course  it  had  travelled 
before  that  time,  Avhether  from  Amsterdam  at  all,  and  if  from  Am- 
sterdam, whether  by  land  carriage  or  by  one  of  their  inland  naviga- 
tions, Rotterdam  being  the  port  of  actual  shipment,  I  do  not  think  it 
material  to  inquire.  On  this  view  of  the  case  it  Vv'ould  be  a  little  too 
rigoi-ous  to  say,  that  an  order  for  a  shipment  to  be  made  at  Amster- 
dam should  be  construed  to  attach  on  the  owner,  although  not  car- 
ried into  effect.  It  has  been  said  from  the  letter  of  the  correspond- 
ent at  Amsterdam,  tliat  the  agents  there  had  informed  their 
correspondents  in  America  that  the  blockade  Avas  not  intended  to 
prevent  exportation :  The  representation  of  the  enemy  shipper 
could  not  have  availed  to  exonerate  the  neutral  merchants,  if  other- 
wise liable.  Were  this  to  be  allow^ed,  it  would  be  in  the  power  of 
the  enemy  to  put  an  end  to  the  blockade  as  soon  as  he  pleased.  If 
the  general  law  is,  that  e^/ress  as  well  as  ingress  is  prohibited  by 
blockade,  the  neutral  merchant  is  bound  to  know  it;  and  if  he  en- 
tertains any  doubt,  he  must  satisfy  himself  by  applying  to  the  coun- 
try imposing  the  blockade,  and  not  to  the  party  who  has  an  interest 
in  breaking  it. 

'•  It  happens  in  tliis  case,  that  the  intended  exportation  did  not 
take  place.  The  only  criminal  act,  if  any,  must  have  been  the  con- 
vcA'ance  from  Amsterdam  to  Rotterdam.  It  would  be  a  little  too 
much  to  say,  that  by  that  previous  act  the  goods  shipped  at  Rotter- 
dam are  affected.  The  legal  consequences  of  a  blockade  nnist  de- 
pend on  the  means  of  blockade  ;  and  on  the  actual  or  possible  appli- 
cation of  the  blockading  force.  On  the  land  side  Amsterdam  neither 
was  nor  could  be  affected  by  a  blockading  naval  force.  It  could  be 
applied  only  externally.  The  internal  communications  of  the  coun- 
try were  out  of  its  reach,  and  in  no  way  subject  to  its  operation.  If 
the  exportation  of  goods  from  Rotterdam  was  at  this  time  permitted, 
it  could  in  no  degree  be  vitiated  by  a  previous  inland  transmission 
of  them  from  the  city  of  Amsterdam.     Restored.'''  ^ 

'  Blockade. — In  the  case  of  the  Circassian,  2  Wallace,  135,  it  was  held  that  a 
blockade  may  be  made  effectual  by  batteries  on  shore,  as  well  as  by  ships  ailoat. 
supported  bj-  a  naval  force  sulficient  to  warn  off  innocent,  and  capture  olf ending 
vessels  attempting  to  enter. 

That  a  blockade  regularly  notified  to  neutral  governments  must,  in  the  absence 
of  clear  proof  of  a  discontinuance  of  it,  be  presumed  to  continue  until  notifica- 
tion is  given  by  tlie  blockading  government  of  such  discontinuance. 

That  a  vessel  sailing  from  a  neutral  port  with  intent  to  violate  a  blockade  is  lia- 
ble to  capture  and  condemnation  as  prize  from  the  time  of  sailing.  See  also  the 
decision  of  Sir  Williaji  Scott  in  the  case  of  the  Columbia,  1  C.  Rob. ,  154. 

In  the  Prize  Cases,  2  Black.,  635  (siq^ira,  %  28),  it  was  held,  that  it  is  a  settled 
rule  that  a  vessel  in  a  bl(;okaded  port  is  in-esumed  to  have  notice  of  a  blockade  as 


CHAr.  III.]  THE    ''ilELEX/'  407 


THE  "IIELEX." 

High  Court  of  .VnMiu.vi/rv,  18G5. 

(L,  R.  1  Ad.  and  Ell.  A.) 

A  breach  of  blockade  is  not  an  orfence  against  the  laws  of  the  country  of  tlie 
neutral  owner  or  master.  The  onh^  jDenalty  for  engaging  in  such  trade  Li  the 
Uabihty  to  capture  and  condemnation  by  the  belligerent. 

In  this  case,  the  master  sued  for  wages  upon  an  agreement  entered 
into  between  himself  and  the  defendants,  the  owners  of  the  Helen. 

The  defendants,  in  the  fourth  article  of  their  answer,  alleged  tliat 
"  the  agreement  was  made  and  entered  into  for  the  purpose  of  run- 
ning the  blockade  of  the  Southern  ports  of  the  United  States  of 
America,  or  one  of  them,  and  was  and  is  contrary  to  law,  and  cannot 
be  recognized  or  enforced  by  this  Honourable  Court." 

Judgment,  by  Dr.  Lushingtox; — 

"  This  is  a  motion  by  the  plaintiff  to  reject  the  fourth  article  of 
the  defendant's  answer.  The  parties  in  thiscauseare  John  Andrews 
"Wardell,  formerly  the  master  of  the  Helen.,  plaintiff,  and  the  Albion 
Trading  Company,  the  owners  of  the  ship,  defendants.  The  master 
sues  for  wages  (with  certain  premiums  added),  alleged  to  have  been 
earned  between  July,  1864,  and  March,  1865.  The  answer  states 
that  according  to  the  agreement  as  set  forth  by  the  defendants,  the 
plaintiff  has  been  paid  all  that  was  due  to  him.     This  part  of  the 

soon  as  it  commences.  See  also  the  Vrouj  Judith,  1  C.  Rob.,  150.  In  this  case  a 
de  facto  blockade  may  be  broken  without  notice,  by  egress.  But  persons  enter- 
ing a  place  under  de  facto  blockade  are  entitled  to  warning. 

The  French  rule  in  respect  of  a  violation  of  blockade  differs  essentially  from 
that  of  the  United  States  and  England.  Notwithstanding  that  a  blockade  has 
been  publicly  proclauned,  a  ship  saiUng  for  a  blockaded  port  is  entitled  to  a  warn- 
ing, entered  upon  her  papers,  and  is  only  liable  to  seizure  and  condemnation 
when  she  subrequently  attempts  to  enter  or  leave  a  blockaded  port.  See  the 
cases  of  La  Louisa,  Pistoye  et  Duverdy,  I. ,  382  ;  and  the  Eliza  Cornish,  ib. ,  387. 

As  to  the  blockades  established  by  the  ''orders  in  council,"  during  the  wars 
with  Napoleon  I. ,  see  Edwards'  Admiralty  Reports,  381—416,  and  the  appendix  to 
that  volume.     See  also  in  the  same  volume,  pp.  249-251,  and  311-326. 

For  other  cases  on  the  subject  of  blockade,  see  the  Baigornj,  2  Wall. ,  474  ;  the 
C/ies/ure,  3Wall.,231,  235:  the  Admiral,  3  Wall.,  604;  the  Peterhoff,  5  Wall., 
28;  the  Dashing  Wave,  5  Wall.,  170;  the  Teresita,  5WaU.,180;  the  Pearle,  5 
Wall.,  574  ;  the  Wren,  6  Wall.,  582  ;  the  Franciska,  Spinks,  111,  and  10 Moore,  P 
C.  C,  37  ;  the  Henrick  and  Maria,  1  C.  Rob.,  146. 
32 


498  BELLIGERENTS    AXD   NEUTRALS.  [PART  II. 

answer  is  not  objected  to.  The  fourth  and  last  article  is  the  one 
objected  to.  It  alleges  that  the  agreement  was  entered  into  for  the 
purpose  of  breaking  the  blockade  of  the  Southern  States  of  America  ; 
that  such  an  agreement  is  contrary  to  law,  and  cnnuot  be  enforced 
by  this  Court.  In  the  course  of  the  argument,  the  judgment  in  Ex, 
parte  C/iavusse  re  Grazebrook,  34  L.  J.  (Bkr.),  17,  Mas  cited  as  gov- 
erning the  case ;  a  judgment  recently  delivered  by  Lord  Westbury 
whilst  he  was  Lord  Chancellor.  The  law  there  laid  down  is  briefly 
stated,  that  a  contract  of  iiartnership  in  blockade-running  is  not 
contrary  to  the  municipal  law  of  this  country ;  and  by  the  decree 
the  partnership  was  declared  valid,  and  the  accounts  ordered  ac- 
cordingly. It  was  admitted  that  this  decision  is  directly  applicable 
to  the  present  case,  a  suit  to  recover  wages  according  to  a  contract 
with  respect  to  an  intended  adventure  to  break  the  blockade. 

"  That  a  decision  of  the  Lord  Chancellor  is  to  be  treated  by  this 
court  with  the  greatest  respect  there  can  be  no  doubt,  but  is  it  ab- 
solutely binding  ? 

"  There  are  three  tribunals  whose  decisions  are  absolutely  binding 
upon  the  Court  of  Admiralty:  1.  The  House  of  Lords.  2.  The  Privy 
Council.  3.  The  Courts  of  Common  Law  when  deciding  upon  the 
construction  of  a  statute.  If  a  decision  of  any  of  these  tribunals  is 
cited,  all  that  the  Court  of  Admiralty  can  do  is  to  inquire  if  the  de- 
cision is  applicable  to  the  case.  If  so,  then  it  is  the  duty  of  the 
Court  to  obey,  Avhatever  may  be  its  own  judgment. 

"  Xo  other  decisions  are,  I  believe,  absolutely  binding  on  the  Court. 
On  the  present  occasion,  no  decision  has  been  cited  from  the  House 
of  Lords  or  Privy  Council.  Whatever,  therefore,  may  be  the  effect 
of  the  decisions  of  other  tribunals,  I  am  not  relieved  from  the  dut}'' 
of  reconsidering  the  whole  question. 

"  An  intimation  has  been  given  that  this  case  will  be  carried  to 
tlie  Judicial  Committee  ;  if  so,  I  apprehend  that  tribunal  might  be 
inclined  to  consider  me  remiss  in  my  duty  if  I  had  omitted  to  form 
an  independent  judgment  on  the  case,  and  to  state  it  with  my  rea- 
sons. It  is,  I  conceive,  admitted  on  all  hands,  that  the  Court  must 
enforce  the  agreement  with  the  master,  unless  it  is  satisfied  that  such 
agreement  is  illegal  by  the  municipal  law  of  Great  IJritain.  In  order 
to  prove  this  proposition,  the  defendants  say  that  the  agreement  to 
break  the  blockade  by  a  neutral  ship  is,  on  the  part  of  all  persons 
cojicerned,  illegal  according  to  the  law  of  nations,  and  that  the  law 
of  nations  is  a  part  of  the  numicipal  law  of  the  land — '^rr/o,  this  con- 
tract was  illegal  by  municipal  law. 

"  Xow  a  good  deal  may  depend  on  the  sense  in  Avhich  the  word 
'  illegal '  is  used.     I  am  strongly  inclined  to  think  that  the  defend- 


CHAP.  III.]  THE    "  HELEN."  499 

ants  attach  to  it  a  more  extensive  meaning  than  it  can  properly  hear, 
or  was  intended  to  bear  by  those  who  used  it.  The  true  nieaiiiiig\  I 
think,  is  that  all  such  contracts  ai-e  illegal  so  far,  that  if  carried  out, 
they  would  lead  to  acts  which  might,  under  certain  circumstances, 
expose  the  parties  concerned  to  such  penal  consequences  as  are 
sanctioned  by  international  law,  for  breach  of  blockade,  or  for  the 
carrying  of  contraband.  If  so,  the  illegalit}^  is  one  of  a  limited  char- 
acter. For  instance  suppose  a  vessel  after  breaking  the  blockade 
completes  her  voyage  home,  and  is  afterwards  seized  on  another 
voyage,  the  original  taint  of  illegality — whatever  it  may  have  been — 
is  purged,  and  the  ship  cannot  be  condennied ;  yet  if  the  voyage 
w^as,  ah  ijiitio,  wholly  and  absolutely  illegal,  both  by  the  law  of 
nations  and  the  municipal  law,  why  should  its  successful  termina- 
tion purge  the  offence  ?  Let  me  consider  the  relative  situation  of 
the  parties.  A  neutral  country  has  a  right  to  trade  with  all  other 
countries  in  time  of  peace.  One  of  these  countries  becomes  a  bellig- 
erent, and  is  blockaded.  Why  should  the  right  of  the  neutral  be 
affected  by  the  acts  of  the  other  belligerent  ?  The  answer  of  the 
blockading  power  is  :  'Mine  is  a  just  and  necessary  war,'  a  matter 
which,  in  ordinary  cases,  the  neutral  cannot  question,  'I  must  seize 
contraband,  I  must  enforce  blockade,  to  carry  on  the  war.'  In  this 
state  of  things  there  has  been  a  long  and  admitted  usage  on  the  part 
of  all  civilized  states — a  concession  by  l)oth  parties,  the  belligerent 
and  the  neutral — a  universal  usage  which  constitutes  the  law  of 
nations.  It  is  only  with  reference  to  this  usage  that  the  belligerent 
can  interfere  with  the  neutral.  Suppose  no  question  of  blockade  or 
contraband,  no  belligerent  could  claim  a  right  of  seizure  on  the  high 
seas  of  a  neutral  vessel  going  to  the  port  of  another  belligerent, 
however  essential  to  his  interest  it  might  be  so  to  do. 

"  What  is  the  usage  as  to  blockade  ?  There  are  several  conditio:, s 
to  be  observed  in  order  to  justify  the  seizure  of  a  ship  for  breach  of 
blockade.  The  blockade  must  be  effectual  and  (save  accidental  in- 
terruption by  weather)  constantly  enforced.  The  neuti-al  vessel 
must  be  taken  in  delicto.  The  blockade  must  be  enforced  against 
all  nations  alike,  including  the  belligerent  one.  When  all  the  neces- 
sary conditions  are  satisfied,  then,  by  the  usage  of  nations,  the  bel- 
ligerent is  allowed  to  capture  and  condemn  neutral  vessels  Avithout 
remonstrance  from  the  neutral  state.  It  never  has  been  a  part  of 
admitted  common  usage  that  such  voyages  should  be  deemed  illegal 
by  the  neutral  state,  still  less  that  the  neutral  state  should  be  bound 
to  prevent  them  ;  the  belligerent  has  not  a  shadow  of  right  to  require 
more  than  universal  usage  has  given  him,  and  has  no  pretence  to 
say  to  the  neutral :  '  You  shall  help  me  to  enforce  my  belligerent 


r)00  BELLIGERENTS    AXD   NEUTRALS.  [PART  TI 

rig"lit  by  cnrtailiiig-  your  own  freedom  of  commerce,  and  making  that 
illegal  by  yovir  own  luw  which  was  not  so  before.'  This  doctrine  is 
not  inconsistent  with  the  maxim  that  the  law  of  nations  is  part  of 
the  law  of  the  land.  The  fact  is,  the  law  of  nations  has  never 
declared  that  a  neutral  state  is  bound  to  impede  or  diminish  its  own 
trade  by  miniicipal  restriction.  Our  own  Foreign  Enlistment  Act  is 
itself  a  proof  that  to  constitute  transactions  between  British  subjects, 
when  neutral  and  belligerents,  a  municipal  offence  by  the  law  of 
(^reat  Britain,  a  statute  was  necessary.  If  the  acts  mentioned  in 
that  statute  were  in  themselves  a  violation  of  numi(;ipal  law,  why 
any  statute  at  all  ?  I  am  now  speaking  of  fitting  out  ships  of  wai', 
not  of  levyhig  soldiers,  which  is  altogether  a  different  matter.  Then 
how  stands  the  case  ui;on  authority?  I  may  here  sa}',  that  in  prin- 
ci\)\e,  there  is  no  essential  difference  whether  the  question  of  breach 
of  nnniicipal  law  is  raised  with  regard  to  contraband  or  breach  of 
blockade. 

"Mr.  Duer,  'Marine  Insurance,' vol.  T.,  lect.  VTI.,  is  the  only  text- 
writer  who  maintains  an  opinion  contrary  to  what  I  have  stated  to 
be  the  law.  He  maintains  it  with  much  ability  and  acuteness,  but  he 
stands  alone.  He  himself  admits  that  an  insurance  of  a  contraband 
voyage  is  no  offence  against  municipal  law  of  a  neutral  country,  accord- 
ing to  the  practice  of  all  the  principal  states  of  continental  Eu- 
rope. In  the  American  courts  the  question  has  been  more  than  once 
agitated,  but  with  the  same  result.  In  the  case  of  The  tSantissinua 
TfhiidaJ,  IV^heat.,  340,  Mr.  Justice  Story  says: — '  It  is  apparent 
that,  though  e([uipped  as  a  vessel  of  war,  she  (  77/e  Independenciu)  was 
sent  to  Buenos  Ayres  on  a  commercial  adventure,  contraband,  indeed, 
but  in  no  shape  violating  our  laws  or  our  national  neutrality.  If 
captured  by  a  Spanish  ship  of  war  during  the  voyage,  she  would 
have  been  justh'  condemned  as  good  jirize,  and  for  being  engaged  in 
a  traffic  i)rohil)ited  by  the  law  of  nations.  But  there  is  nothing  in 
our  law  or  in  the  law  of  nations  that  forbids  our  citizens  fron  send- 
ing armed  vessels  as  well  as  munitions  of  war  to  foi-eign  ports  for 
sale.  It  is  a  commercial  adventure  which  no  nation  is  bound  to  pro- 
hibit, and  Avhichoidy  exposes  the  persons  engaged  in  it  to  the  penalty 
of  confiscation.'     *    *    * 

'"  There  is  no  pretence  for  saying  that  the  original  outfit  on  the 
voyage  was  illegal.'  Again,  in  liichardsonw.  TJieJSIarine  Insxtrunce 
Company^  G  Mass.,  112,  Paksoxs,  C.  J.,  observes  : — '  The  last  class  Ave 
shall  mention  is  the  transportation  b}^  a  neutral  of  goods  contraband 
of  war  to  the  country  of  either  of  the  belligerent  powers.  And  here, 
it  is  said,  that  these  voyages  are  prohibited  l)}^  the  law  of  nations, 
which  forms  a  }iart  of  the  nuuiicipal  law  of  every  state,  and,  conse- 


CHAP.  III.]  THE    "  IIKLEX."  501 

quently,  that  un  iusiiranc;e  on  such  voyages  made  in  a  neutral  state  is 
prohibited  by  the  laws  of  tliat  state,  and  therefore,  as  in  tlie  case  of 
an  insurance  on  interdicted  conimerce,  is  void.  Tliat  tliere  are  cer- 
tain laws  which  form  a  i>art  of  the  municipal  laws  of  all  civilized 
states,  regulating  their  mutual  intercourse  and  duties,  and  thence 
called  the  law  of  nations,  must  be  admitted  :  as,  for  instance,  the  law 
of  nations  affecting  the  rights  and  the  security  of  ambassadors.  IJut 
we  do  not  consider  the  law  of  nations,  ascertaining  what  voyages  or 
merchandise  are  contraband  of  war,  as  having  the  same  extent  and 
effect.  It  is  agreed  by  every  civilized  state  that,  if  the  suljjcct  of  a 
neutral  power  shall  attempt  to  furnish  either  of  the  belligerent 
sovereigns  with  goods  contraband  of  war,  the  other  may  rightfully 
seize  and  condemn  them  as  prize.  But  we  do  not  know  of  any  rule 
established  by  the  law  of  nations  that  the  neutral  shipper  of  goods 
contraband  of  war,  is  an  offender  against  his  own  sovereign,  and 
liable  to  be  punished  by  the  municipal  laws  of  his  own  country. 
When  a  neutral  sovereign  is  notified  of  a  declaration  of  war,  he  may, 
and  usually  does,  notify  his  subjects  of  it,  with  orders  to  declme  all 
contraband  trade  with  the  nations  at  war,  declaring  that,  if  they  ai-e 
taken  in  it,  he  cannot  protect  them,  but  not  announcing  the  trade  as 
a  violation  of  his  own  laws.  Should  their  sovereign  offer  to  protect 
them,  his  conduct  would  be  incompatible  with  his  neutrality.  And 
as,  on  the  one  hand,  he  cannot  complain  of  the  confiscation  of  his 
subjects'  goods,  so,  on  the  other,  the  power  at  war  does  not  inq^ute 
to  Jiim  these  practices  of  his  subjects.  A  neutral  merchant  is  not 
obliged  to  regard  the  state  of  war  between  other  nations,  but  if  he 
ships  goods  prohibited J«;'6  belli,  they  may  be  rightfully  seized  and 
condemned.  It  is  one  of  the  cases  where  two  conflicting  rights  exist, 
which  either  party  may  exercise  without  charging  the  other  with 
doing  wrong.  As  the  transportation  is  not  prohibited  by  the  laws 
of  the  neutral  sovereign,  his  subjects  may  lawfully  be  concerned  in 
it ;  and,  as  the  right  of  war  lawfully  authorizes  a  belligerent  power 
to  seize  and  condemn  the  goods,  he  may  lawfully  do  it. '  Lastly,  in 
Seton,  Maitland  &,  Co.  v.  Loto,  1  Johnson,  5,  Mr.  Justice  Kent  says  : 
— '  I  am  of  opinion  that  the  contraband  goods  were  lawful  goods, 
and  that  whatever  is  not  prohibited  to  be  exported  by  the  positive 
law  of  the  country  is  lawful.  It  may  be  said  that  the  law  of  nations 
is  part  of  the  municipal  law  of  the  land,  and  that  by  that  law  con- 
traband trade  is  prohibited  to  neutrals,  and,  consequently,  unlaw- 
ful. This  reasoning  is  not  destitute  of  force ;  but  the  fact  is  that 
the  law  of  nations  does  not  declare -the  trade  to  be  unlawful.  It 
only  authorizes  the  seizure  of  the  contraband  articles  by  the  be) 
ligerent  powers.'     *     *    * 


502  CELLIGEEENTS    AND    XEUTUALS.  [PART  11. 

"In  the  English  Courts  tlie  only  case  in  which  the  point  has  been 
actual]}'  decideil  is  the  recent  case  before  the  Lord  Chancellor,  which 
I  have  already  adverted  to.  "With  regard  to  the  cases  in  Mr.  Duer's 
book,  Xaylor  v.  Tn]jloi\  Medtiross  v.  Ilill^  it  is  enough  to  say  that,  ill 
the  view  which  the  court  eventuall}''  took  of  the  facts,  the  question 
of  law  did  Jiot  arise.  It  is  in  tliese  two  cases  inipossil)le  to  say  with 
certainty  Avhat  was  the  opinion  of  the  judges  at  nisi  prias. 

"I  cannot  entertain  any  doubt  as  to  the  judgment  I  ought  to  j)ro- 
nounce  in  this  case.  It  appears  that  principle,  authority,  and  usage 
unite  in  calling  on  me  to  reject  the  new  doctrine  that,  to  carry  on 
trade  with  a  blockaded  port,  is  or  ought  to  be  a  municipal  offence 
by  the  law  of  nations.  I  must  direct  tiie  -ith  article  of  the  answer 
to  be  struck  out.  I  cannot  pass  by  the  fact  that  the  attempt  to  intro- 
duce this  novel  doctrine  comes  from  an  avowed  ^:)ar(;*c6/:>s  criminis^ 
who  seeks  to  benefit  himself  by  it.  xVs  he  has  failed  on  every 
ground,  he  must  pay  the  cost  of  his  experiment." 

ISectiox  47. — Rule  of  tue  Wae  of  1756. 


TIIE  "  niMAXUEL." 

High  Coura^  of  Admiralty,  1799. 

(2C.  RoUnson,\m.) 

Neutrals  will  not  be  permitted  to  engage  in  a  trade,  during  a  war.  from  which 
they  were  excluded  in  time  of  peace.  This  applies  especially  to  the  colonial 
trade. 

This  was  the  case  of  an  asserted  Ilambtirg  ship,  taken  14th 
August,  1799,  on  a  voyage  from  Hamburg  to  St.  Domingo,  having  in 
her  voyage  touched  at  Bourdeaux,  where  she  sold  part  of  the  goods 
brought  from  Ibunburg,  and  took  a  quantity  of  iron  stores  and  other 
articles  for  St.  Donnngo.  A  question  was  first  raised  as  to  tlie  prop- 
erty of  the  ship  and  cargo ;  2dly,  supposing  it  to  be  neutral  prop- 
perty,  whether  a  trade  from  the  mother  country  of  France  to  St. 
Domingo,  a  P'rench  Colony,  was  not  an  illegal  trade,  and  such  as 
would  render  the  property  of  neutrals  engaged  in  it  liable  to  be  con- 
sidered as  the  property  of  enemies,  and  suV)ject  to  confiscation  ? 

The  following  are  extracts  from  the  judgment. 

Sir  Wm.  Scott. — "  Upon  the  breaking  out  of  a  war,  it  is  the  riglit 
of  neutrals  to  carry  on  their  accuHtomed  trade,  Avith  an  exception  of 
the  particular  cases  of  a  trade  to  blockaded  places,  or  in  contraband 


CHAr.  III.]  THE    "  IM.MANUEL.''  503 

articles  (in  l)oUi  which  cases  their  i)n)perty  is  liable  to  be  condemned), 
and  of  their  ships  being  liable  to  visitation  and  search ;  in  which 
case  however  they  are  entitled  to  freig-ht  and  expenses.  I  do  not 
mean  to  say  that  in  the  accidents  of  a  war  the  property  of  neutrals 
may  not  be  variously  entangled  and  endangered ;  in  the  nature  of 
liunian  connections  it  is  hardly  possible  that  inconveniences  of  this 
kind  should  be  altogether  avoided.  Some  neutrals  will  be  unjustly 
engaged  in  covering  the  goods  of  the  enemy,  and  others  will  be  un- 
justly suspected  of  doing  it ;  these  inconveniences  are  more  than 
fully  balanced  by  the  enlargement  of  their  commerce  ;  the  trade  of 
the  belligerents  is  usually  interrupted  in  a  great  degree,  and  falls  in 
the  same  degree  into  the  lap  of  neutrals.  But  without  reference  to 
accidents  of  the  one  kind  or  other,  the  general  rule  is,  that  the  neutral 
has  a  right  to  carry  on,  in  time  of  war,  his  accustomed  trade  to  the 
utmost  extent  of  which  that  accustomed  trade  is  capable. 

"  Very  different  is  the  case  of  a  trade  which  the  neutral  has  never 
possessed,  which  he  holds  by  no  title  of  use  and  habit  in  times  of 
peace,  and  which,  in  fact,  can  obtain  in  war  by  no  other  title,  than 
by  the  success  of  the  one  belligerent  against  the  other,  and  at  the 
expense  of  that  very  belligerent  under  whose  success  he  sets  up 
his  title  ;  and  such  I  take  to  be  the  colonial  trade,  generally  speaking. 

"  AVhat  is  the  colonial  trade  (/eneraUi/  si:>eahinfj  ?  It  is  a  trade 
generally  shut  up  to  the  exclusive  use  of  the  mother  country,  to 
which  the  colony  belongs,  and  this  to  a  double  use; — that,  of  sup- 
plying a  market  for  the  consum[)tion  of  native  commodities,  and  the 
other  of  furnishing  to  the  mother  country  the  peculiar  commodities 
of  the  colonial  regions  ;  to  these  two  purposes  of  the  mother  coun- 
try, the  general  policy  respecting  colonies  belonging  to  the  states  of 
Europe,  has  restricted  them.  With  respect  to  other  coimtries,  gen- 
erally speaking,  the  colony  has  no  existence ;  it  is  possible  that 
indirectly  and  remotely  such  colonies  may  affect  the  commerce  of 
other  countries.  *  *  * 

"  Upon  the  interruption  of  a  war,  what  are  the  rights  of  bellig- 
erents and  neutrals  respectively  regarding  such  places?  It  is  an 
indubitable  right  of  the  belligerent  to  possess  himself  of  such  places, 
as  of  any  other  possession  of  his  enemy.  Tliis  is  his  connnon  right, 
but  he  has  the  certain  means  of  carrying  sucli  a  right  into  effect,  if 
he  has  a  decided  superiority  at  sea :  Such  colonies  are  dependent  for 
their  existence,  as  colonies,  on  foreign  supplies ;  if  they  cannot  be 
supplied  and  defended  they  must  fall  to  the  belligerent  of  course — 
and  if  the  belligerent  chooses  to  apply  his  means  to  such  an  ol)ject, 
what  right  has  a  third  party,  perfectly  neutral,  to  step  in  and  prevent 
the  execution  ?    No  existing  interest  of  his  is  affected  by  it ;  he  can 


504  BELLIGEKEXTS    AND    XEUTRALS.  [PAET  U. 

have  no  right  to  appl}-  to  his  own  nse  tlie  beneficial  consequences  of 
the  mere  act  of  tlie  belhgerent ;  and  say,  '  True  it  is,  you  have,  by 
force  of  arms  forced  sucli  places  out  of  the  exclusive  pussession  of 
the  enemy,  but  I  will  share  the  benefit  of  the  conquest,  and  by  shar- 
ing its  benefits  prevent  its  progress.  You  have  in  effect,  and  by 
lawful  means,  turned  the  enemy  out  of  the  possession  which  he  had 
exclusively  maintained  against  the  Avhole  w^orld,  and  with  whom  we 
had  never  presumed  to  interfere ;  but  Ave  will  interpose  to  prevent 
his  absolute  surrender,  l)y  the  means  of  that  very  opening,  AAhicli 
the  prevalence  of  your  arms  alone  has  affected;  supplies  shall  be 
sent  and  their  products  shall  be  exported ;  you  have  lawfully  de- 
stroyed his  monopoly,  but  you  shall  not  be  permitted  to  possess  it 
yourself;  we  insist  to  share  the  fruits  of  your  victories,  and  your 
blood  and  treasure  have  been  expended,  not  for  your  own  interest, 
but  for  the  common  benefit  of  others.' 

"  L'pon  these  grounds,  it  cannot  be  contended  to  be  a  rl</htol  neu- 
trals, to  intrude  into  a  connnerce  which  had  been  uniformly  shut 
against  them,  and  which  is  now  forced  open  merely  by  the  pressure 
of  war ;  for  when  the  enemy,  under  an  entire  inability  to  supply  his 
colonies  and  to  export  their  products,  affects  to  open  them  to  neu- 
trals, it  is  not  his  will  buthisnecessity  that  changes  his  system  ;  that 
change  is  the  direct  and  unavoidable  consequence  of  the  compulsion 
of  war,  it  is  a  measure  not  of  French  councils,  but  of  British  force. 

"  Upon  these  and  other  grounds,  which  I  shall  not  at  present 
enumerate,  an  instruction  issued  at  an  early  period  for  the  purpose 
of  preventing  the  communication  of  neutrals  with  the  colonies  of  the 
enemy,  intended,  I  presume,  to  be  carried  into  effect  on  the  same 
footing,  on  which  the  prohibition  had  been  legally  enforced  in  the 
war  of  175G;  a  period  when,  Mi'.  Justice  Blackstone  observes,  the 
decisions  on  the  law  of  nations  i)roceedingfrom  the  Court  of  Appeals, 
w'ere  known  and  revered  by  every  state  in  Europe. 

"  Condemned." 


THE  "  emaxi:el." 

High  Court  of  Admiralty,  1799. 

(1  C.  Rohhmm,2m.) 

Neutrals  nf)t  allowed  to  carry  on  a  trade  during  war,  forbidden  to  them  in  time 
of  peace.     This  rule  applies  to  the  coasting  trade. 

Tliis  was  a  case  respecting  the  allowance  of  freight  and  expenses 
to  a  neutral  ship,  taken  carrying  on  the  coasting  trade  of  the  enemy. 


CHAP.  IT!.]  THE    "  ^yILLIA.M."  505 

The  following  are  extracts  from  the  judgment  by  Sir  W.m. 
Scott  : — ■ 

"Now  the  ground  upon  wliieh  it  is  contended  that  the  freiglit  is 
not  due  to  the  pro[)rietors  of  this  vessel,  is,  that  she  is  a  Danish  ship 
employed  in  the  transmission  of  Spanish  goods,  from  one  Spanish 
port  to  another,  and  so  carrying  on  tlie  coasting-trade  of  that  coun- 
try. In  our  own  country  it  has  long  been  the  system,  that  the 
coasting-trade  should  only  be  carried  on  by  our  own  navigation.  I 
observe,  that  in  all  the  rage  of  novel  exi)eriment  that  has  dictated 
the  commercial  regulations  of  France  in  its  new  condition,  this  policy 
is  held  sacred;  it  stands  enacted,  by  a  decree  21st  Sept.,  1793,  that 
no  goods,  the  growth  or  manufacture  of  France,  shall  be  carried  from 
one  French  port  to  another  in  foreign  ships  under  pain  of  confisca- 
tion.— The  same  policy  has  directed  the  commercial  system  of  other 
European  countries ;  in  the  ordinary  state  of  affairs,  no  indulgence 
is  generally  permitted  to  the  ships  of  most  other  countries  to  carry 
on  the  coasting  trade.  I  think  therefore  the  onus  pTohundi  does  at 
least  lie  on  that  side ;  and  alwaj^s  makes  it  necessary  to  be  shown 
by  the  claimants,  that  such  a  trade  was  not  a  mere  indulgence,  and 
a  temporary  relaxation  of  the  coasting  system  of  the  state  in  ques- 
tion ;  but  that  it  was  a  common  and  ordinary  trade,  0})en  to  the 
ships  of  any  country  whatever.  *  *  * 

"  As  to  the  coasting  trade  (supposing  it  to  be  a  trade  not  usually 
opened  to  foreign  vessels),  can  there  be  described  a  more  effective 
accommodation  that  can  be  given  to  an  enemy  during  a  war  than  to 
undertake  it  for  him  during  his  own  disability  V  " 


Section  4S. — Contixuous  Voyages. 


THE  "WILLIAM." 

Lords  of  AppezVL  ix  Prize  Cases,  1806. 

(5  C.  Bobinson,  dSrx) 

By  the  "Rule  of  the  War  of  1756,"  neutrals  were  not  permitted  to  engage  in 
the  dn-ect  trade  between  the  enemy  and  his  colonies.  And  the  mere  touching 
at  a  neutral  port  to  avoid  this  rule,  will  not  make  the  voyage  lawful. 

This  was  a  question  on  the  continuity  of  a  voyage  in  the  colonial 
trade  of  the  enemy,  brought  by  appeal  from  the  Vice-Admiralty 


50G  BELLIGEIIENTS    AND    NEUTRALS.  [PAET  II. 

Court  at  TTalif:ix.  \\  here  the  ship  ami  cai'.y'o,  taken  on  a  destination 
to  I'>ill)oa  in  Spain,  and  claimed  on  behalf  of  Messrs.  W.  and  X. 
IIoo[)er  of  Marblehead  in  the  state  of  Massachusetts,  had  been  con- 
dennied  17th  July,  18U0. 

Among  the  papers  was  a  certificate  from  the  collector  of  the  cus- 
toms, "that  this  vessel  had  entered  and  landed  a  cargo  of  cocoa 
belonging  to  Messrs.  W.  and  X.  Hooper,  and  that  the  duties  had 
been  secured  agreeable  to  law,  and  that  the  said  cargo  had  been  re- 
shipped  on  board  this  vessel  bound  for  Bilboa. 

Judgment, — Sir  William  Grant  : — 

"  The  question  in  this  case  is,  whether  that  part  of  the  cargo  which 
has  been  the  subject  of  further  proof,  and  which,  it  is  admitted,  was, 
at  the  time  of  the  capture,  going  to  Spain,  is  to  be  considered  as 
coming  directly  from  Laguira  within  the  meaning  of  his  Majesty's 
instructions.  According  to  our  understanding  of  the  law,  it  is  only 
from  those  instructions  that  neutrals  derive  any  right  of  carrying 
on  \Aitli  the  colonies  of  our  enemies,  in  time  of  war,  a  trade  from 
which  they  were  excluded  in  time  of  peace.  The  instructions  had 
not  permitted  the  direct  trade  between  the  hostile  colony  and  its 
mother  country,  but  had,  on  the  contrary  ordered  all  vessels  engaged 
in  it  to  be  brought  in  for  lawful  adjudication  ;  and  what  the  present 
claimants  accordingly  maintain,  is  not  that  they  could  carry  tlie 
produce  of  Laguira  directlj^  to  Spain ;  but  that  they  were  not  so 
carrying  the  cargo  in  question,  inasmuch  as  the  voyage  in  Avhicli  it 
was  taken  was  a  voyage  from  North  America,  and  not  directly  from 
a  colony  of  Spain. 

"  What  then,  with  reference  to  this  subject,  is  to  be  considered  as 
a  direct  voyage  from  one  place  to  another?  Xobody  has  ever  sup- 
posed that  a  mere  deviation  from  the  straightest  and  shortest  course, 
in  wljirh  the  voyage  could  be  performed,  would  change  its  denomi- 
nation, and  make  it  cease  to  be  a  direct  one  within  the  intendment 
of  tlie  instructions. 

"  Xothing  can  depend  on  the  degree  or  the  deviation — whether  it 
be  of  more  or  fewer  leagues,  whether  towards  the  coast  of  Africa,  or 
towards  that  of  America.  X'either  will  it  be  contended  that  the 
point  from  which  the  commencement  of  a  voyage  is  to  be  reckoned 
changes  as  often  as  the  ship  stops  hi  the  course  of  it ;  nor  will  it  tlie 
more  change,  because  a  party  may  choose  arbiti-arily  by  the  sliip's 
papers,  or  otherwise,  to  give  the  name  of  a  distinct  voyage  to  each 
stage  of  a  ship's  progress.  The  act  of  sliifting  the  cargo  from  the 
ship  to  the  shore,  and  from  the  shore  back  again  into  the  ship,  does 
not  necessarily  amount  to  the  termination  of  one  voyage  and  the 
commencement  of  another.     It  may  be  wholly  unconnected  with  any 


CHAP.  III.]  THE   "  ^yILLIAM."  507 

purpose  of  iinportiitioii  into  the  pliice  Avliero  it  is  done  :  Supposiii"- 
the  hmdhig  to  he  merely  for  the  purpose  of  airing-  or  drying  the 
goods,  or  of  repairing  tlie  sliij),  would  any  man  think  of  de.scrihing 
the  voyage  as  heginning  at  the  place  where  it  happened  to  become 
necessary  to  go  through  such  a  process? 

"Again,  let  it  be  supposed  that  the  party  has  a  motive  for  desiring 
to  make  the  voyage  appear  to  begin  at  some  other  place  than  that 
of  the  original  lading,  and  that  he  therefore  lands  the  cargo  [)urely 
and  solely  for  the  purpose  of  enabling  himself  to  affirm,  that  it  was 
at  such  other  place  that  the  goods  were  taken  on  board,  would  thi.s 
contrivance  at  all  alter  the  truth  of  the  fact  ?  Would  not  the  real 
voyage  still  be  from  the  place  of  the  original  shipment,  notwith- 
standing the  attempt  to  give  it  the  appearance  of  having  begun  from 
a  different  place?  The  truth  may  not  always  be  discernible,  but 
when  it  is  discovered,  it  is  accordiiig  to  the  truth  and  not  according 
to  the  fiction,  that  we  are  to  give  to  the  transaction  its  character  and 
denomination.  If  the  voyage  from  the  place  of  lading  be  not  really 
ended,  it  matters  not  by  what  acts  the  party  may  have  evinced  his 
desire  of  making  it  appear  to  have  been  ended.  That  those  acts 
have  been  attended  with  trouble  and  expence  cannot  alter  their 
quality  or  their  effect.  The  trouble  and  expence  may  AA^eigh  as  cir- 
cumstances of  evidence,  to  shew  the  purpose  for  which  the  acts  were 
done;  but  if  the  evasive  purpose  be  admitted  or  proved,  we  can 
never  be  found  to  accept  as  a  substitute  for  the  observance  of  the 
laAv,  the  means,  however  operose,  which  have  been  employed  to  cover 
a  breach  of  it.  Between  the  actual  importation  by  which  a  voyage 
is  really  ended,  and  the  colourable  importation  which  is  to  give  it 
the  appearance  of  being  ended,  there  must  necessarily  be  a  great 
resemblance.  The  acts  to  be  done  must  be  almost  entirely  the  same  ; 
but  there  is  this  difference  between  them. — The  landing  of  the  cargo, 
the  entry  at  the  custom-house,  and  the  payment  of  such  duties  as 
the  law  of  the  place  requires,  are  necessaru  ingredients  in  a  genuine 
importation;  the  true  purpose  of  the  owner  cannot  be  effected  with- 
out them.  But  in  a  fictitious  importation  they  are  mere  voluntary 
ceremonies,  which  have  no  natural  connection  whatever  Avith  the 
purpose  of  sending  on  the  cargo  to  another  market,  and  Avhich,  there- 
fore, Avould  never  be  resorted  to  by  a  person  entertaining  that  pur- 
pose, except  Avith  a  view  of  giving  to  the  voyage  Avliich  he  has  resolved 
to  continue,  the  appearance  of  being  broken  by  an  importation,  Avhicli 
he  has  resolved  not  really  to  make. 

"  XoAV,  Avhat  is  the  case  immediately  before  us  ?  The  cargo  in 
que.-ition  Avas  taken  on  board  at  Laguira.  It  Avas  at  the  time  of  the 
capture  xu'oceedhig  to  Spain;  but  the  ship  had  touched  at  an  Ameri- 


508  BELLIGERENTS    AND   NEUTltALS.  [PAKT  IL 

can  port.  The  cargo  was  landed  and  entered  at  the  custom-house, 
and  a  bond  was  given  for  the  duties  to  the  amount  of  1,239  dolhirs 
The  cargo  was  re-shipped,  and  a  debenture  for  1,211  doHars  by  way 
of  drawback  was  obtained.  All  this  passed  in  the  course  of  a  few 
days.  The  vessel  arrived  at  Marblehead  on  the  29tli  of  May ;  on 
that  day  the  bond  for  securing  the  duties  was  given.  On  the  30th 
and  31st  the  goods  were  landed,  weighed,  and  packed.  The  permit 
to  ship  them  is  dated  the  1st  of  June,  and  on  the  3d  of  June  the 
vessel  is  cleared  out  as  laden,  and  ready  to  proceed  to  sea.  We  are 
frequently  obliged  to  collect  the  purpose  from  the  circumstances  of 
the  transaction.  The  landing  thus  almost  instantaneously  followed. 
In'  the  re-shipment,  has  little  a})pearance  of  having  been  made  with 
a  view  to  actual  importation ;  but  it  is  not  upon  inference  that  the 
conclusion  in  this  case  is  left  to  rest.  The  claimants,  instead  of 
shoeing  that  they  really  did  import  their  cargo,  have,  in  their  at- 
testation, stated  the  reasons  which  determined  them  not  to  import 
it.  They  saj-,  indeed,  that  when  they  ordei'ed  it  to  be  purchased, 
'it  was  with  the  single  view  of  bringing  it  to  the  United  States,  and. 
that  the)''  had  no  intention  or  expectation  of  exporting  it  in  the 
said  schooner  to  Spain.'  Supposing  that  from  this  somewhat  am- 
biguous statement  we  are  to  collect  that  their  original  intention  was 
to  have  imported  this  cargo  into  America,  with  a  view  only  to  the 
xVmerican  market,  yet  their  intention  had  been  changed  before  the 
arrival  of  the  vessel.  For  they  state  that  in  the  heginning  of  May 
they  had  received  accounts  of  the  prices  of  cocoa  in  Spain,  which 
satisfied  them  that  it  would  sell  much  better  there  than  in  America, 
and  that  they  had  therefore  determined,  to  send  it  to  the  Spanish 
market.  Nothing  is  alleged  to  have  happened  between  the  landing 
of  the  cargo  and  its  re-shipment,  that  could  have  the  least  influence 
on  their  determination.  It  was  not  in  that  short  interval  that 
American  prices  fell,  or  that  information  of  the  higher  prices  in 
Spain  had.  been  received.  Knowing  beforehand  the  comparative 
state  of  the  two  markets,  they  neither  tried  nor  meant  to  try  that  of 
America,  but  proceeded  with  all  possible  exj)edition  to  go  through 
the  forms  which  have  been  before  enumerated.  If  the  continuity  of 
the  voyage  remains  unbroken,  it  is  immaterial  whether  it  be  by  tlie 
prosecution  of  an  original  purpose  to  continite  it,  as  in  the  case  of 
the  Esse.i\  or,  as  in  this  case,  b}'  the  relinquislniient  of  an  original 
purpose  to  have  brought  it  to  a  termination  in  ^Vmerica.  It  can 
never  Ije  contended,  that  an  intention  to  import  once  entertained  is 
equivalent  to  importation.  And  it  would  be  a  contradiction  in  terms 
to  say  that  by  acts  done  after  the  original  intention  has  been  aban- 
doned, such  original  intention  has  been  carried  into  execution.    Why 


CHAP.  III.]  THE    "STEPHEN   HAirr."  509 

should  ii  cargo,  wliicli  iliure  was  to  be  no  attempt  to  sell  in  Anieiica, 
have  been  entered  at  an  American  custom-house,  and  voluntarily- 
subjected  to  the  payment  of  any,  even  the  most  tiiliing-  duty?  Not 
because  importation  was,  or  in  such  a  case  could  be  intended,  but 
because  it  was  thought  expedient  that  something  should  be  done, 
which  iu  a  British  Prize  Court  might  pass  for  importation.  Indeed, 
the  claimants  seem  to  have  conceived  that  the  inquii-y  to  be  made 
here  was,  not,  whether  the  importation  was  real  or  pretended,  but 
whether  the  pretence  had  assumed  a  particular  form,  and  was  ac- 
companied with  certain  circumstances  which  by  some  positive  rule 
were,  in  all  cases,  to  stand  for  importation,  or  to  be  conclusive  evi- 
dence of  it.     *     *     * 

"But  supposing  that  we  had  uniformly  held  that  payment  of  the 
import  duties  furnished  conclusive  evidence  of  importation,  would 
there  have  been  any  inconsistency  or  contradiction  in  holding  that 
the  mere  act  of  giving  a  bond  for  an  amount  of  duties,  of  which  only 
a  very  insignificant  part  was  ever  to  be  paid,  could  not  have  the 
same  effect  as  the  actual  payment  of  such  amount?  The  further 
proof  in  the  Essex  first  brought  distinctly  before  us  the  real  state  of 
the  fact  in  this  particular.  It  has  been  already  mentioned  that  we 
had  called  for  an  account  of  the  drawbacks,  if  any,  that  had  been  re- 
ceived. This  produced  the  information  that  although  the  duties 
secured  amounted  to  5,278  dollars,  yet  a  debenture  was  immediately 
afterwards  given  for  no  less  than  5,080  dollars ;  so  that  on  that 
valuable  cargo  no  more  than  198  dollars  ^vould  be  ultimately  pay- 
able, which  sum  is  said  to  be  more  than  compensated  for  the  advan- 
tage arising  from  the  negotiability  of  the  debenture.     *     *     * 

"  The  consequence  is,  that  the  voyage  was  illegal,  and  that  the 
sentence  of  condemnation  must  be  afBrmed," 


THE  "STEPHEN  HART." 

U.  S.  District  Court  for  So.  New  York,  1863. 

( Blatchford's  Prize  Cases,  387.) 

The  mere  touching  at  a  neutral  port,  or  even  a  trans-shipment  insucli  port,  will 
not  be  considered  as  breaking  the  voyage,  if  the  intention  was,  on  sailing,  to 
carry  contraband  goods  to  Confederate  ports,  or  to  break  the  blockade  mstituted 
against  them. 

The  schooner  f'itephen  Hart  was  captured,  as  lawful  prize  of  war, 
by  the  United  States  vessel  of  war  ISiqiphj,  on  the  29th  of  January. 


510  BELLIGERENTS   AND    NEUTRALS.  [PAUT  IL 

1862,  off  the  southern  coast  of  Florida,  about  25  miles  from  Key 
West,  aiul  about  82  miles  from  Point  de  Yeaeos,  in  Cuba,  bound  os- 
tensibly from  London  to  Cardenas,  in  Cuba,  with  a  cargo  of  muni- 
tions of  war  and  army  supplies. 

Extract  from  the  decision  of  Betts,  J. : — 

"  Many  of  the  principle  questions  involved  in  the  present  case,  and 
in  the  cases  of  the  >Sprinf/bo/c  and  the  Peterhoiff-\  are  alike ;  and,  as 
the  conclusion  at  which  the  court  has  arrived  in  all  of  those  cases  is 
to  condenni  the  vessels  and  their  carj^oes,  I  shall  announce,  in  this 
case,  the  leading  principles  of  public  law  wliich  lead  to  a  condemna- 
tion in  all  the  cases. 

"  On  behalf  of  the  libellants,  it  is  urged  in  this  case,  1st.  That  the 
Steplien  Hart  and  her  cargo  were  enemy's  property  when  the  voyage 
in  question  was  undertaken,  and  when  the  capture  was  made ;  2d. 
That  the  schooner  was  laden  with  articles  contraband  of  war,  des- 
tined for  the  aid  and  use  of  the  enemy,  and  on  transportation  by  sea 
to  the  enemy's  country  at  the  time  of  capture ;  od.  That,  with  a 
full  knowledge,  on  the  part  of  the  owner  of  the  vessel  and  of  the 
owners  of  her  cargo,  that  the  ports  of  the  enemy  were  under  block- 
ade, the  vessel  and  her  cargo  were  despatched  from  a  neutral  port 
with  an  intention,  on  the  part  of  the  owners  of  each,  that  in  viola- 
tion of  the  blockade,  both  the  vessel  and  her  cargo  should  enter  a 
port  of  the  enemj^ 

"  On  the  part  of  the  claimants,  it  is  maintained,  1st.  That  the 
transportation  of  all  articles,  including  arms  and  munitions  of  war, 
between  neutral  ports  in  a  neutral  vessel,  is  lawful  in  time  of  war; 
2d.  That  if  a  neutral  vessel,  with  a  cargo  belonging  to  neutrals,  be 
in  fact  on  a  voyage  from  one  neutral  port  to  another,  she  cannot  be 
seized  and  condemned  as  lawful  prize,  although  she  be  laden  with 
contraband  of  war,  unless  it  be  determined  that  she  was  actually 
destined  to  a  port  of  the  enemy  upon  the  voyage  on  which  she  was 
seized,  or  unless  she  is  taken  in  the  act  of  violating  a  blockade. 

"  It  is  insisted,  on  the  part  of  the  claimants,  that  the  Stephe?i  Hart 
■was,  at  the  time  of  her  capture,  a  neutral  vessel,  carrying  a  neutral 
cargo  from  London  to  Cardenas — both  of  them  being  neutral  ports — 
in  the  regular  course  of  trade  and  commerce.  On  the  other  side  it 
is  contended  that  the  cargo  was  composed  exclusively  of  articles 
contraband  of  war,  destined,  when  they  left  London,  to  be  delivered 
to  the  enemy,  either  directly,  by  being  carried  into  a  port  of  the 
enemy  in  the  Stephen  Hart  or  by  being  trans-shipped  at  Cardenas 
to  another  vessel;  that  Cardenas  was  to  be  used  merely  as  a  port  of 
call  for  the  Stephen  Hart,  or  as  a  port  of  trans-shipment  for  her  cargo ; 
that  the  vessel  and  her  cargo  are  equally  involved  in  tlie  forbidden 


CHAP.  HI.]  THE    "  STEPHEN   HAP.T."  511 

transaction  ;  and  that  the  papers  of  the  vessel  Avere  simulated  and 
fraudulent  in  respect  to  her  destination  and  that  of  her  cai-go.  A  con- 
demnation is  not  asked  if  the  cargo  was  in  fact  neutral  property,  to 
be  delivered  at  Cardenas  for  discharge  and  general  consumption  or 
sale  tliere,  but  is  only  claimed  if  the  cargo  was  really  intended  to  be 
delivered  to  the  enemy  at  some  other  place  than  Cardenas,  after 
using  that  port  as  a  port  of  call  or  of  trans-shipment,  so  as  to  thus 
render  the  representations  contained  in  the  papers  of  the  vessel  false 
and  fraudulent  as  to  the  real  destination  of  the  vessel  and  her  cargo. 

"  It  would  scarcely  seem  possible  that  there  could  be  any  serious 
debate  as  to  the  true  principles  of  public  law  applicable  to  the  solu- 
tion of  the  questions  thus  presented ;  and,  indeed,  the  law  is  so  aa-cII 
settled  as  to  make  it  only  necessary  to  see  whether  the  facts  in  this 
case  bring  the  vessel  and  her  cargo  within  the  rules  which  have 
been  laid  down  by  the  most  eminent  authorities  in  England  and  in 
this  country. 

"The  principles  upon  which  the  government  of  the  United  States, 
and  the  public  vessels  acting  under  its  commission,  have  proceeded, 
during  the  present  war,  in  arresting  vessels  and  cargoes  as  lawful 
prize  upon  the  high  seas,  are  very  succinctly  embodied  in  the  in- 
structions issued  by  the  Xavy  Department  on  the  IStli  of  August, 
1862,  to  the  naval  commanders  of  the  United  States,  and  which  hi- 
structions  are  therein  declared  to  be  a  recapitulation  of  those  there- 
tofore from  time  to  time  given.  The  substance  of  those  instruc- 
tions, so  far  so  they  are  applicable  to  the  present  case,  is,  that  a 
vessel  is  not  to  be  seized  '  without  a  search  carefully  made,  so  far  as 
to  render  it  reasonable  to  believe  that  she  is  engaged  in  carrying 
contraband  of  war  for  or  to  the  insurgents,  and  to  their  ports  di- 
rectly or  indirectly  by  trans-shipment,  or  otherwise  violating  the 
blockade.' 

"  The  main  feature  of  these  instructions,  so  far  as  they  bear  upon 
the  questions  involved  in  this  case,  is  but  an  application  of  the  doc- 
trine in  regard  to  captures  laid  down  by  the  government  of  the 
United  States  at  a  very  early  day.  In  an  ordinance  of  the  Congress 
of  the  Confederation,  which  went  into  effect  on  the  1st  of  February, 
1782,  5  Wheaton,  Appendix,  p.  120,  it  was  declared  to  be  lawful  to 
capture  and  to  obtain  condemnation  of  all  '  contraband  goods,  wares, 
and  merchandises,  to  whatever  nations  belonging,  although  found 
in  a  neutral  bottom,  if  destined  for  the  nse  of  an  enemy!' 

"  The  soundness  of  these  principles,  and  the  fact  that  the  law  of 
nations,  as  applicable  to  cases  of  prize,  has  been  observed  and  applied 
by  the  government  of  the  United  States  and  its  courts  during 
the  present  war,  was  fully  recognized  by  Earl  Russell,  her  Britannic 


512  BELLIGERENTS    AXD    NEUTRALS.  [rAET  U. 

Majesty's  principal  secretary  of  state  for  foreign  affairs,  in  his  re- 
marks made  in  the  House  of  Lords  on  the  iSth  of  May  last.  Earl 
Iiussell  there  stated  that  the  judg-ments  of  the  United  States 
prize  courts,  which  had  been  reported  to  her  ]\Iajesty's  government 
durhig  the  present  war,  did  not  evince  any  disregard  of  the  estab- 
lished i)rinciples  of  international  law  ;  that  the  law  officers  of  the 
Crown,  after  an  attentive  consideration  of  the  decisions  which  had 
been  laid  before  tliem,  were  of  opinion  that  there  was  no  rational 
ground  of  complaint  as  to  the  judgments  of  the  American  prize 
courts;  and  that  the  law  of  nations  in  regard  to  the  search  and  seiz- 
ure of  neutral  vessels  had  been  fully  and  completely  acknowledged 
by  the  government  of  the  United  States.  On  the  same  occasion 
Earl  Russell  remarked :  '  It  has  been  a  most  profitable  business  to 
send  swift  vessels  to  break  or  run  the  blockade  of  the  southern 
ports,  and  carry  their  cargoes  into  those  ports.  There  is  no  munic- 
ipal law  in  this  or  any  country  to  punish  such  an  act  as  an  offence. 
I  understand  that  every  cargo  which  runs  the  blockade  and  enters 
Charleston  is  worth  a  million  of  dollars,  and  that  the  profit  on  these 
transactions  is  immense.  It  is  well  known  that  the  trade  has  attracted 
a  great  deal  of  attention  in  this  country  from  those  who  have  a  keen 
eye  to  such  gains,  and  that  vessels  have  been  sent  to  Xassau  in 
order  to  break  the  blockade  at  Charleston,  "Wilmington,  and  other 
places,  and  carry  contraband  of  war  into  some  of  the  ports  of  the 
Southern  States.'  He  added :  '  I  certainly  am  not  prepared  to  de- 
clare, nor  is  there  any  ground  for  declaring,  that  tlie  courts  of  the 
United  States  do  not  faithfully  administer  the  law;  that  they  will 
not  allow  evidence  making  against  the  captors ;  or  that  they  are 
likely  to  give  decisions  founded,  not  upon  the  law,  but  upon  their 
own  passions  and  national  partialities.'  He  also  said,  that  in  a  case 
of  simulated  destination — that  is,  a  vessel  pretending  that  she  is 
going  to  Xassau,  when  she  is  in  reality  bound  to  a  port  of  the  ene- 
my— the  right  of  seizure  exists. 

"  The  then  solicitor-general  of  England  ( Sir  Roundell  Palmer) 
stated,  in  the  House  of  Commons,  on  the  29th  of  June  last,  referring 
to  the  cases  of  the  Dolphin  and  the  Pearly  decided  by  the  district 
court  for  the  southern  district  of  Florida  (those  vessels  having  been 
captured  while  ostensibly  on  voyages  from  Liverpool  to  Nassau,  and 
it  having  been  held  by  the  court  that  the  intention  of  the  owners  of 
the  vessels  was  that  they  should  only  touch  at  Xassau,  and  then  go 
and  break  the  blockade  at  Charleston),  that '  if  the  owners  imagined 
that  the  mere  fact  of  the  vessel  touching  at  Xassau  Avhen  on  such 
an  expedition  exonerated  her,  they  \vere  very  much  mistaken  ;'  that 
the  principles  of  the  judgment  in  the  case  of  the  Dolphin  'were  to 


OHAP.  TI!.]  THE    "STEPHEN    HART."  513 

be  found  in  every  volnme  of  Lord  Stowell's  decisions ;'  that  it  was 
well  known  to  everybody  that  there  was  a  large  contraband  trade 
between  Elngland  and  America  by  way  of  Nassau  ;  that  it  was  absurd 
to  pretend  to  shut  their  eyes  to  it;  and  that  the  trade  witli  Nassau 
and  ]\Iatanioras  liad  become  what  it  was  in  consequence  of  the  war. 

"  The  Foreign  Office  of  Great  Britain,  in  a  letter  to  the  owner  of 
the  Peterhoff,  on  the  3d  of  April  last,  announced  as  its  conclusion, 
after  having  communicated  with  the  law  officers  of  the  Crown,  that 
the  government  of  the  United  vStates  has  no  right  to  seize  a  British 
vessel  honafide  bound  from  a  British  port  to  another  neutral  port, 
unless  such  vessel  attempts  to  touch  at,  or  has  an  intermediate  or 
contingent  destination  to,  some  blockaded  port  or  place,  or  is  a  car- 
rier of  contraband  of  war  destined  for  the  enemy  of  the  United 
States  ;  that  her  Majesty's  government,  however,  cannot,  without 
violating  the  rules  of  international  law,  claim  for  British  vessels 
navigating  between  Great  Britain  and  such  neutral  ports  any  gen- 
eral exemption  from  the  belligerent  rigiit  of  visitation  by  the  cruisers 
of  the  United  States,  or  proceed  upon  any  general  assumption  that 
such  vessels  may  not  so  act  as  to  render  their  capture  lawful  and 
justifiable ;  that  nothing  is  more  common  than  for  those  who  con^ 
template  a  breach  of  blockade  or  the  carriage  of  contraband,  to  dis- 
guise their  purpose  by  a  simulated  destination  and  by  deceptive 
papers ;  and  that  it  has  already  happened,  in  many  cases,  that  Brit- 
ish vessels  have  been  seized  while  engaged  in  voyages  apparently  law- 
ful, and  have  been  afterwards  proved  in  the  prize  courts  to  have 
been  really  guilty  of  endeavoring  to  break  the  blockade,  or  of  carry- 
ing contraband  to  the  enemy  of  the  United  States. 

"  The  cases  of  the  Stephen  Hart,  the  /Sprinr/bok,  the  Peterhoff,  and 
the  Gertrude  illustrate  a  course  of  trade  which  has  sprung  up  during 
the  present  war,  and  of  which  this  court  will  take  judicial  cognizance, 
as  it  appears  from  its  own  records  and  those  of  other  courts  of  the 
United  States  as  well  as  from  public  reputation.  Those  neutral 
ports  have  suddenly  been  raised  from  ports  of  comparatively  in- 
significant trade  to  marts  of  the  first  magnitude.  Nassau  and  Car- 
denas are  in  the  vicinity  of  the  blockaded  poi'ts  of  the  enemy,  while 
Matamoras  is  in  Mexico,  upon  the  right  bank  of  the  Rio  Grande, 
directly  opposite  the  town  of  Brownsville,  in  Texas.  The  course  of 
trade,  in  respect  to  Nassau  and  Cardenas,  has  been  generally  to  clear 
neutral  vessels,  almost  always  under  the  British  flag,  from  English 
ports  for  those  places,  and,  using  them  merely  as  j)orts  either  of  call 
or  of  trans-shipment,  to  either  resume  new^  voyages  from  them  in  the 
same  vessels,  or  to  trans-ship  their  cargoes  to  fleet  steamers,  with 
which  to  run  the  blockade,  the  cargoes  being-  composed,  in  almost 
33 


514  BELLIGEKEXTS    AMD    NErTRALS.  [PAKT  II. 

all  cases,  more  or  less,  of  articles  contraband  of  war.  The  character 
and.  course  of  this  trade,  and  its  sudden  rise,  are  verj^  properly  com- 
mented upon  in  a  despatch  from  the  Secretary  of  State  of  the  United 
States  to  Lord  Lyons,  of  the  12th  of  May,  1863. 

"  The  broad  issue  upon  the  merits  in  this  case  is,  whether  the  ad- 
venture of  the  /Stephe?i  Hart  was  the  honest  voyage  of  a  neutral 
vessel  from  one  neutral  port  to  another  neutral,  carrying  neutral 
goods  between  those  two  ports  only,  or  was  a  simulated  voyage,  the 
cargo  being  contraband  of  war,  and  being  really  destined  for  the  use 
of  the  enem}',  and  to  be  introduced  into  the  enemy's  country  by  a 
breach  of  blockade  by  the  Stephen  Hart,  or  by  trans-shipment  from 
her  to  another  vessel  at  Cardenas.  It  is  conceded  in  the  argument 
of  the  leading  counsel  for  the  claimants  that  if  the  property  was 
owned  by  the  enem}-,  and  was  fraudulently  on  its  way  to  the  enemy 
as  neutral  property,  it  was  enemy's  property,  and  was  liable  to 
capture,  no  matter  whence  it  came  or  whither  it  was  bound ;  and 
that,  if  the  vessel  were  really  intending  and  endeavoring  to  run  the 
blockade,  the  property  was  liable  to  capture,  no  matter  to  whom  it 
belonged  or  what  was  its  character;  but  that  if  it  was  neutral  prop- 
erty, in  Imrfid  commerce,  it  was  safe  from  seizure. 

"The  question  whether  or  not  the  property  laden  on  board  of  the 
Stephen  Hart  was  being  transported  in  the  business  of  lawful  com- 
merce, is  not  to  be  decided  by  merely  deciding  the  question  as  to 
Avhether  the  vessel  was  documented  for,  and  sailing  upon,  a  voyage 
from  London  to  Cardenas.  The  commerce  is  in  the  destination  and 
intended  use  of  the  property  laden  on  board  of  the  vessel,  and  not 
in  the  incidental,  ancillary,  and  temporary  voyage  of  the  vessel, 
Avhich  may  be  but  one  of  many  carriers  through  which  the  property 
is  to  reach  its  true  and  original  destination.  If  this  were  not  the 
riile  of  the  prize  law,  a  very  wide  door  would  be  opened  for  fraud 
and  evasion.  A  cargo  of  contraband  goods,  really  intended  for  the 
enemy,  might  be  carried  to  Cardenas  in  a  neutral  vessel  sailing  from 
England  with  papers  Avhich,  upon  their  face,  import  merely  a  voyage 
of  the  vessel  to  Cardenas,  wliile  in  fact,  her  cargo,  when  it  left  Eng- 
land, was  destined  by  its  owners  to  be  delivered  to  the  enemy  by 
being  trans-shipped  at  Cardenas  into  a  swifter  vessel.  And  such, 
indeed,  has  been  the  course  of  proceeding  in  many  cases  during  the 
present  war.  *  *  * 

"The  law  seeks  out  the  truth,  and  never,  in  any  of  its  branches, 
tolerates  any  such  fiction  as  that  under  Avhicli  it  is  sought  to 
shield  the  vessel  and  her  cargo  in  the  present  case.  If  the  guilty 
intention,  that  the  contraband  goods  should  reach  a  port  of  the 
enemy,  existed  when  such  goods  left  their  English  port,  that  guilty 


CHAr.  Il[.]  THE    "MARIA."  515 

intention  cannot  be  obliterated  by  tlie  innocent  intention  of  stoppings 
at  a  neutral  port  on  the  way.  If  tliere  be,  in  sto[)[)ing  at  sucli  port, 
no  intention  of  trans-shipping  the  cargo,  and  if  it  is  to  proceed  to  the 
enemy's  country  in  the  same  vessel  in  wliich  it  came  from  Enghmd, 
of  course  there  can  be  no  purpose  of  lawful  neutral  commerce  at  the 
neutral  port  by  the  sale  or  use  of  the  cargo  in  the  market  there ;  and 
the  sole  purpose  of  stopping  at  the  neutral  port  must  merely  be  to 
have  upon  the  papers  of  the  vessel  an  ostensible  neutral  terminus 
for  the  voyage. 

"  If,  on  the  other  hand,  the  object  of  stopping  at  the  neutral  port 
be  to  trans-ship  the  cargo  to  another  vessel  to  be  transported  to  a 
port  of  the  enemy,  while  the  vessel  in  which  it  was  brought  from 
England  does  not  proceed  to  the  port  of  the  enemy,  there  is  erpially 
an  absence  of  all  lawful  neutral  commerce  at  the  neutral  port ;  and 
the  only  commerce  carried  on  in  the  case  is  that  of  the  transporta- 
tion of  the  contraband  cargo  from  the  English  port  to  the  port  of 
the  enemy,  as  was  intended  when  it  left  the  English  port.  This 
court  holds  that,  in  all  such  cases,  the  transportation  or  voj'^age  of 
the  contraband  goods  is  to  be  considered  as  a  unit,  from  the  port  of 
lading  to  the  port  of  delivery  in  the  enemy's  country;  that  if  any 
part  of  such  voyage  or  transportation  be  unlawful,  it  is  unlawful 
throughout ;  and  that  the  vessel  and  her  cargo  are  subject  to  capture ; 
as  well  before  arriving  at  the  first  neutral  port  at  which  she  touches 
after  her  departure  from  England,  as  on  the  voyage  or  transporta- 
tion by  sea  from  such  neutral  port  to  the  port  of  the  enemy.  *  *  * 

"  There  must,  therefore,  be  a  decree  condemning  both  vessel  and 
cargo."  ^ 

Section  49. — Visit  axd  Search. 


THE  "MARIA." 


A  vessel  sailing  under  convoy  of  an  armed  shii?  for  the  purpose  of  avoiding 
visitation  and  search  is  liable  to  condemnation. 

This  was  the  leading  case  of  a  fleet  of  Swedish  merchantmen,  car- 
rying pitch,  tar,  hemp,  deals,  and  iron,  to  several  ports  of  France, 

'  Cases  involving  the  same  principles,  are  the  Springhok,  5  Wallace,  1  :  The 
Peterhoff,  5  Wallace,  28,  and  others.  The  judgment  of  Betts,  J.,  in  the  Stephen 
Hart  was  subsequently  briefly  affirmed  by  the  Supreme  Court,  and  it  (Beits' 
judgment)  is  on  the  whole  the  clearest  and  most  forcible  statement  of  the  prin- 
ciples and  the  circumstances  involved  in  these  cases,  to  be  found  in  the  reports. 


516  BELLIGKKEXTS    AND    NEUTItALS.  [I'AKT  H, 

Portugal,  and  the  Mediterranean  ;  and  taken,  Jan.,  1798,  sailing 
under  convo}'  of  a  ship  of  war,  and  proceeded  against  for  resistance 
of  visitation  and  search  by  British  cruisers. 

Judgment, — Sir  W.  Scott. — (Onl}'  so  much  of  the  judgment  is  here 
given  as  ai)plies  to  general  principles).  "  *  *  *  Tliis  being  the  actual 
state  of  facts,  it  is  j) roper  for  me  to  examine,  'idly,  what  is  their 
legal  state,  or,  in  other  words,  to  what  considerations  they  are  justly 
subject,  according  to  the  law  of  nations ;  for  which  purpose  I  state  a 
few  principles  of  that  system  of  law  which  I  take  to  be  incontro- 
A'ertible. 

"1st,  That  the  right  of  visiting  and  searching  merchant  ships 
upon  the  high  seas,  whatever  be  the  ships,  Avhatever  be  the  cargoes, 
whatever  be  the  destinations,  is  an  incontestible  right  of  the  law- 
fully commissioned  cruisers  of  a  belligerent  nation.  I  say,  be  the 
ships,  the  cargoes,  and  the  destinations  what  they  may,  because,  till 
they  are  visited  and  searched,  it  does  not  appear  what  the  ships,  or 
the  cargoes,  or  the  destinations  are ;  and*  it  is  for  the  purpose  of 
ascertaining  these  points  that  the  necessity  of  this  right  of  visitation 
and  search  exists.  This  right  is  so  clear  in  principle,  that  no  man 
can  deny  it  who  admits  the  legality  of  maritime  capture  ;  because  if 
jon  are  not  at  liberty  to  ascertain  by  sufficient  inquiry  wdiether 
there  is  property  that  can  legall}^  be  captured,  it  is  impossibde  to 
capture.  Even  those  who  contend  for  the  inadmissible  rule,  that 
free  ships  make  free  [/oodft,  must  admit  the  exercise  of  this  right  at 
least  for  the  purjiose  of  ascertaining  whether  tlie  ships  are  free  ships 
or  not.  The  right  is  equally  clear  in  pi-actice ;  for  practice  is  uni- 
form and  universal  upon  the  subject.  Tlie  many  European  treaties 
wliich  refer  to  this  right,  refer  to  it  as  pre-existing,  and  merely  reg- 
ulate the  exercise  of  it.  All  writers  upon  the  law  of  nations  unani- 
mously acknowledge  it,  without  the  exception  even  of  Ilubner  himself, 
the  great  champion  of  neutral  privileges.  In  short,  ]io  man  in  the 
least  degree  conversant  in  subjects  of  this  kind  has  ever,  that  I  know 
of,  breathed  a  doubt  upon  it.  The  right  nuist  unquestional)h^  be 
exercised  with  as  little  of  personal  harshness  and  of  vexation  in  the 
mode  as  possible  ;  but  soften  it  as  much  as  you  can,  it  is  still  a  right 
of  force,  though  of  lawful  force — sometliing  in  the  nature  of  civil 
process,  where  force  is  employed,  but  a  lawful  force,  which  cannot 
lawfully  be  resisted.  For  it  is  a  wild  conceit  that  wherever  force  is 
used,  it  may  be  forcibly  i-esisted;  a  lawful  force  cannot  lawfully  be 
resisted.  The  only  case  Avhere  it  can  be  so  in  matters  of  this  nature, 
is  in  the  state  of  war  and  conflict  between  two  countries,  where  one 
party  has  a  perfect  i-ight  to  attack  by  force,  and  the  other  has  an 
equally  perfect  right  to  repel  by  force.     But  in  the  relative  situation 


CHAP.  III.]  THE    "MARIA."  517 

of  two  countries  at  peace  with  eacli  otlier,  no  suc;li  conflicting::  riglits 
can  possibly  coexist. 

"tidly,  Tliat  tlie  authority  of  the  Sovereign  of  tlie  neutral  country 
being  interposed  in  any  manner  of  mere  force  cannot  lef/ally  vary 
the  rights  of  a  lawfully-commissioned  belligerent  cruiser ;  I  say 
legally^  because  what  may  be  given,  or  be  fit  to  be  given,  in  the  ad- 
ministration of  this  species  of  law,  to  considerations  of  comity  or  of 
national  policy,  are  views  of  the  matter  which,  sitting  in  this  Court, 
I  have  no  right  to  entertain.  AH  that  I  assert  is,  that  le(/(ilhj  it  can- 
not be  maintained,  that  if  a  Swedish  commissioned  cruiser,  during 
the  wars  of  his  own  countr}^  has  a  right  by  the  law  of  nations  to 
visit  and  examine  neutral  ships,  the  King  of  England,  being  neutral 
to  Sweden,  is  authorized  by  that  law  to  oljsti'uct  the  exercise  of  that 
right  with  respect  to  the  merchant-ships  of  his  country.  I  add  this, 
that  I  cannot  but  think  that  if  he  obstructed  it  by  force,  it  would 
very  much  resemble  (with  all  due  reverence  be  it  spoken)  an  opjiosi- 
tion  of  illegal  violence  to  legal  right.  Two  sovereigns  may  unques- 
tionably agree,  if  they  think  fit,  (as  in  some  late  hi  stances  they  have 
agreed,)  by  special  covenant,  that  the  presence  of  one  of  their  armed 
ships  along  with  their  merchant-ships  shall  be  mutually  understood 
to  imply  that  nothing  is  to  be  found  in  that  convoy  of  merchant-ships 
inconsistent  with  amity  or  neutrality  ;  and  if  they  consent  to  accept 
this  pledge  no  third  party  has  a  right  to  quarrel  with  it  any  more  than 
with  any  other  pledge  which  they  may  agree  mutually  to  accept. 
But  surely  no  sovereign  can  legally  com[)el  the  acceptance  of  such  a 
security  by  mere  force.  The  only  security  known  to  the  law  of  na- 
tions upon  this  subject,  independent  of  all  special  covenant,  is  the 
right  of  personal  visitation  and  search,  to  be  exercised  by  those  who 
have  the  interest  in  making  it.  I  am  not  ignorant,  that  amongst 
the  loose  doctrines  which  modern  fancy,  under  the  various  denomi- 
nations of  philosophy  and  philanthropy,  and  I  know  not  Avhat,  have 
thrown  upon  the  world,  it  has  been  within  these  few  years  advanced, 
or  rather  insinuated,  that  it  might  possibly  be  well  if  such  a  security 
were  accepted.  Upon  such  unauthorized  speculations  it  is  not  nec- 
essary for  me  to  descant :  the  law  and  practice  of  nations  (I  include 
l)articularly  the  practice  of  Sweden  when  it  happens  to  be  belligerent) 
give  them  no  sort  of  countenance;  and  until  that  law  and  practice 
are  new-modelled  in  such  a  toay  as  may  surrender  the  known  and 
ancient  rights  of  some  nations  to  the  present  convenience  of  other 
nations,  (which  nations  may  perhaps  remember  to  ybrye^  them,  when 
they  happen  to  be  themselves  belligerent,)  no  reverence  is  due  to 
them  ;  they  are  the  elements  of  that  system  which,  if  it  is  consistent, 
has  for  its  real  purpose  an  entire  abolition  of  cai)ture  in  war — that 


518  BELLIGERENTS   AND   NEUTRALS.  [PART  II. 

is,  in  other  words,  to  change  tlie  nature  of  hostility,  as  it  has  ever 
existed  among-st  nianlvind,  and  to  introduce  a  state  of  things  not  yet 
seen  in  the  world,  that  of  a  military  war  and  a  conunercial  peace. 
If  it  were  fit  that  such  a  state  should  be  introduced,  it  is  at  least 
necessary  that  it  should  be  introduced  in  an  avowed  and  intelligible 
manner,  and  not  in  a  way  which,  professhig  gravely  to  adhere  to 
that  system  which  has  for  centuries  [jrevailed  among  civilized  states, 
and  urging  at  the  same  time  a  pretension  utterly  inconsistent  with 
all  its  known  principles,  delivers  over  the  whole  matter  at  once  to 
eternal  controversy  and  conflict,  at  the  expence  of  the  constant  hazard 
of  the  harmony  of  states,  and  of  the  lives  and  safeties  of  innocent 
individuals. 

"  odly.  That  the  penalty  for  the  violent  contravention  of  this  right 
is  the  confiscation  of  the  property  so  w^ithheld  from  visitation  and 
search.  For  the  proof  of  this  I  need  only  refer  to  Vattel,  one  of  the 
most  correct  and  certainly  not  the  least  indulgent  of  modern  profes- 
sors of  public  law."  ^    See  Book  III.,  c.  vii.,  sect.  11-1. 


Section  50. — Prize  Courts. 


DECISIONS  OF  PPJZE  COURTS. 

( Lawrence's  WJieaton,  960.) 
Tlie  decision  of  a  prize  court  is  conclusive  in  I'espect  of  the  title  to  tlie  property. 

"The  constitution  of  prize  courts  is  an  anomaly  in  jurisprudence. 
Deriving  their  authority  from  one  nation,  they  pass  irrevocably  on 
the  title  to  the  property  belonging  to  the  citizens  or  subjects  of  an- 
other. Tribunals  exclusively  of  the  belligerents,  they  pronounce  on 
the  rights  of  neutrals,  who  have  no  other  appeal  from  the  admiralty 
courts  in  the  last  resort  than  to  the  justice  of  the  sovereign  of  the 
captor,  through  the  diplomatic  interposition  of  their  own  govern- 
ment. 

"In  England  the  common  law  courts,  whatever  protection  they 
may  have  given  to  the  rights  of  propert}^  as  well  as  of  person,  have 
from  an  early  day  recognized  the  conclusiveness  of  foreign  prize 
decisions  on  the  question  of  title.    A  case  in  the  King's  Bench,  which 

'  See  also  the  case  of  the  Marianna  Flora.  11  Wlieaton,  1. 
For  decisions  on  Visit  and  Search  in  time  of  jjeace,  see  Le  Louis,  supra,  %  20 
(c)  -.  The  Antelope,  10  Wheaton,  119. 


CHAP.  III.]  PRIZE   COURTS    ON    BOARD    SHIPS.  519 

occurred  in  1683  (34  Car.  11.),  while  declaring  the  absence  in  such 
cases  of  jurisdiction  in  the  court,  points  out  the  only  remedy  for  the 
party  ag-grieved.  Trover  having  been  brought  by  the  original  owner, 
an  English  denizen,  for  a  Dutch  built  ship  taken  in  the  war  between 
the  Dutch  and  French,  as  a  Dutch  i)rize,  and  condennied  in  the 
French  admiralty  court,  the  chief  question  was,  whether  the  sentence 
should  be  examined  by  the  common  law  courts.  '  It  was  resolved 
that  it  shall  not,  because,  though  it  be  in  another  king's  dominions, 
we  ought  to  give  credit  to  it,  or  else  they  will  not  give  credit  to  the 
sentences  of  our  court  of  admiralty.  And  the  defendants  are  at  no 
prejudice.  The  way  is,  if  they  find  themselves  aggrieved,  to  petition 
the  king,  who  will  examine  the  case,  and,  if  he  finds  cause  of  com- 
plaint, will  send  to  his  ambassador  residing  with  the  prince  or  state 
w^here  the  sentence  was  given,  and  upon  failure  of  redress,  will  grant 
letters  of  marque  and  reprisal.'  "  ^ 


PRIZE  COURTS  OX  BOARD  SHIPS. 

{Captain  Semmes :  ''Cruise  of  tJte  Alabama,"'  I.,  346.) 

Does  International  Law  sanction  the  establishment  of  prize  courts  by  com- 
manders of  belligerent  cruisers,  on  board  their  ships  ? 

Captain  Semmes,  of  the  Confederate  steamer  Stanpter,  and  later 
commander  of  the  Alabama,  would  seem  to  have  turned  his  cabin 
into  a  prize  court  on  the  occasion  of  every  capture  made  by  him.  It 
has  generally  been  held  that  the  commander  of  a  belligerent  cruiser 
has  no  right  to  decide  controverted  questions  arising  in  cases  of  prize. 
He  seizes  a  vessel  on  the  belief  or  suspicion  that  she  is  enemy's 
property,  or  that  she  is  engaged  in  a  forbidden  commerce,  it  is  left 
to  the  prize  court  of  the  captor's  country  to  determine  whether  these 
suspicions  are  warranted  or  not. 

During  his  cruises  in  the  Sumpter  and  the  Alabama,  Captain 
Semmes  had  occasion  to  adjudicate  in  more  than  seventy  cases  of 
prize ;  in  fifty-nine  of  these  cases,  ship  and  cargo  w-ere  condemned 
as  enemy's  property,  and  burned ;  in  nine  cases  the  ships  were  re- 
leased on  ransom  bonds,  the  cargoes  being  plainly  neutral.  But  in 
a  large  number  of  the  cases  of  those  condemned  and  burned,  there 
were  claims  for  the  cargoes  as  neutral  property.  Captain  Semmes 
seems  to  have  condemned  the  cargo,  unless  there  was  positive  proof 

'  For  the  constitution  and  functions  of  prize  courts,  see  Lawrence's  ^\^leaton, 
S60  ;  Baker's  HaUeck,  XL,  411  ;  PhiUimore,  III.,  648-679. 


520  BELLIGERENTS    AND    NEUTRALS.  [PART  H. 

of  its  neutrality.  This  practice  was  carried  on  1)}'  him  and  others 
for  four  years,  and  was  acquiesced  in  t)y  neutral  nations  ;  who  per- 
mitted their  ships  to  be  searched  and  their  property  adjudicated 
upon  by  these  connnanders.  They  received  them  into  their  ports, 
and  supplied  them  with  provisions  and  coal.  Who  shall  say,  there- 
fore, that  liereafter  a  prize  court  may  not  be  established  on  the  deck 
of  every  belligerent  man-of-war,  the  commander  constituting  sucli 
court '? 

The  following  is  a  specimen  of  Captain  Semmes'  procedure,  taken 
froni  his  own  memorandum. 

Case  of  the  Lafayette  (••  Cruise  of  the  Alabama,"  I.,  .846) : — 

"  Ship  and  cargo  condenuied.  The  cargo  of  this  ship  was  con- 
demned by  me  as  enemy's  property,  notwithstanding  there  were 
dej^ositions  of  the  shippers  that  it  had  been  purchased  by  them  on 
neutral  account.  These  ex  parte  statements  are  precisel}^  such  as 
everj^  unscrupulous  merchant  would  prepare,  to  deceive  his  enemy 
and  save  his  property  from  capture." 

After  an  extended  discussion  of  the  case,  showing  that  there  Avas 
fraud,  and  that  the  neutrality  of  the  cargo  was  not  established, 
Captain  Semmes  continues  : — 

"  3d  Phillimore,  599,  to  the  effect,  that  '  further  proof '  is  always 
necessary  where  the  master  cannot  swear  to  the  ownership  of  the 
property  (as  in  this  case).  And  as  I  cannot  send  my  prizes  in  for 
adjudication,  I  must  of  necessity  condemn  in  all  cases  where  'fur- 
ther proof  is  necessary,  since  the  granting  of  'further  proof  pro- 
ceeds on  the  presumption  that  the  neutrality  of  the  cargo  is  not 
sufficiently  established ;  and  where  tlie  neutrality  of  the  property 
does  not  fully  appear  from  the  ship's  papers  and  the  master's  deposi- 
tion, I  had  the  right  to  act  upon  the  presumption  of  enemy's 
property." 

Again,  in  the  case  of  the  U.tpress  {lb.,  167),  in  which  ship  and 
cargo  were  condemned.  "It  must  be  admitted  that  this  is  a  case  in 
which,  perhaps,  a  prize  court  would  grant  '  further  proof ; '  but  as  I 
cannot  do  this,  and  as  a  distinct  neutral  character  is  not  impressed 
upon  the  property  by  former  evidence,  I  must  act  under  the  pre- 
sumption of  law.     See  .3d  Phill.,  580." 

The  following  is  an  extract  from  the  "  Cape  Argus,"  giving  an  in- 
terview with  Captain  Semmes  : — 

"You  English  people  won't  l)e  neighborly. enough  to  let  me  bring 
my  prizes  into  your  ports  and  get  them  condemned,  so  tliat  I  am 
obliged  to  sit  here  a  court  of  uajself  try  ever}^  case,  and  condemn 
the  ships  I  take," 


APPENDIX. 


A. 

THE  BEIIRIXG  SEA  ARBITRATIOX,  1893.  i 

May  a  State  exercise  jurisdiction  on  the  high  seas  for  the  purpose  of  protect- 
ing fur-seals,  which,  for  several  months  in  each  year,  remain  on  land  in  its 
territory. 

The  controversy  in  this  case  g'rew  out  of  the  seizure  by  United 
States  revenue  cutters,  in  Behring  Sea,  of  sixteen  Canadian  vessels, 
between  August  1st,  1886,  and  Marcli  27tli,  1890,  for  talcing  seals  in 
that  sea.  These  seizures  were  all  made  beyond  the  three-mile  limit, 
at  distances  varying  from  fifteen  to  one  hundred  and  fifteen  miles 
from  land.  It  was  supposed  that  tlie  United  States  acted  upon  the 
assumption  that  Behring  Sea  was  mare  clausuyn.  Tliat  was  the 
view  taken  of  it  by  Judge  Daavsox,  of  the  District  Court  of  Alaska; 
who,  in  charging  the  jury  in  the  case  of  one  of  these  vessels  (the 
Thornton)^  said:  "All  the  waters  within  the  boundary  set  forth  to 
the  western  end  of  the  Aleutian  Archipelago  and  chain  of  islands  are 
to  be  considered  as  comprised  within  the  waters  of  Alaska.     *    *    * 

"If  the  jury  believe  the  defendant  killed  any  otter,  miidc,  marten, 
sable,  or  fur-seal,  or  other  fur-bearing  animals  on  the  shores  of 
Alaska,  or  in  the  Behring  Sea,  east  of  the  1938  of  west  longitude, 
they  shall  find  him  guilty.     *     *     *" 

So,  Chief  Justice  Fuller,  in  delivering  the  opinion  of  the  court  in 
the  Sayward  case,  assumed  that  the  seizure  was  made  by  right  of 
mare  dausum. 

But  the  government  of  the  United  States  did  not  press  thatclaim„ 
Mr.  E.  J,  Phelps,  in  a  despatch  to  Mr.  Blaine,  September  12th,  1888, 
said : — 

"Here  is  a  valuable  fishery,  and  a  large  and,  if  properly  managed, 

'  On  account  of  the  recent  date  of  this  decision,  it  has  heen  impossible  to  put 
it  in  its  proper  i:)lace  in  the  body  of  the  book  ( ••Jurisdiction  on  the  High  Seas  "  ). 

Tlie  arguments  of  the  English  counsel  have  not  come  to  hand,  and  therefore 
are  not  represented  in  tliis  report. 

521 


522  APPENDIX. 

peniianent  iiidusti-}',  tlie  property  of  the  nation  on  whose  shores  it 
is  carried  on.  It  is  proposed  by  tlie  colony  of  a  foreign  nation,  in 
defiance  of  the  joint  renionsti-ance  of  all  the  conntries  interested,  to 
destroy  this  business  by  the  indisciiniinate  slang'hter  and  extermina- 
tion of  the  animals  in  cpiestion  in  the  open  neighboring'  sea,  during 
the  period  of  gestation,  Avhen  the  connnon  dictates  of  humanity 
ought  to  protect  them,  were  there  no  interests  at  all  involved.  And 
it  is  suggested  that  we  are  prevented  from  protecting  ourselves 
against  such  depredations  because  the  sea,  at  a  certain  distance  from 
the  coast,  is  free. 

"The  same  Ihie  of  ai-gunient  would  take  under  its  protection 
piracy  and  the  slave  trade,  when  prosecuted  in  the  open  sea,  or 
would  justify  one  nation  in  destroying  the  commerce  of  another  by 
placing  dangerous  obstructions  and  derelicts  in  the  open  sea  near  its 
coasts.  There  are  many  things  that  cannot  be  allowed  to  be  done 
on  the  open  sea  with  impunity,  and  against  which  every  sea  is  mare 
(■hiiision.  And  the  right  of  self-defense  as  to  person  and  property 
prevails  there  as  fully  as  elsewhere.  If  the  fish  upon  Canadian 
coasts  could  be  destroyed  by  scattering  poison  in  the  open  sea  adja- 
cent, Avitli  some  small  profit  to  those  engaged  in  it,  would  Canada, 
upon  the  just  principles  of  international  law,  be  held  defenseless 
in  such  a  case?  Yet  that  process  would  be  no  more  destructive, 
inhuman,  and  wanton  than  this. 

"  If  precedents  are  wanting  for  a  defense  so  necessary  and  so 
proper,  it  is  because  precedents  for  such  a  course  of  conduct  are  like- 
wise unknown.  The  best  international  law  has  arisen  from  prece- 
dents that  have  been  established  when  the  just  occasion  for  them 
arose,  undeterred  by  the  discussion  of  abstract  and  inadeciuate  rules." 

The  views  thus  expressed  by  Mr.  Phelps  were  declared  by  Mr. 
Blaine,  to  be  the  views  adopted  by  the  Government  of  the  United 
States. 

J//-.  Blaine's  statement  of  the  issues,  January  *J2d,  1890,  to  Sir 
Julian  Pauncefote : — 

'■  In  the  opinion  of  the  President,  the  Canadian  vessels  arrested 
and  detained  in  the  Beliring  Sea  were  engaged  in  a  pursuit  that  was 
contra  honos  mores,  a  pursuit  which  of  necessity  involves  a  serious 
and  permanent  injury  to  the  rights  of  the  goverinnent  and  people  of 
the  United  States.  To  establish  this  ground  it  is  not  necessary  to 
argue  the  question  of  the  extent  and  nature  of  the  sovereignty  of 
this  government  over  the  waters  of  the  Behring  Sea  ;  it  is  not  neces- 
sary to  ex[)lain,  certainly  to  define,  the  powers  and  privileges  ceded 
by  Ilis  Imperial  Majesty  the  Emperor  of  liussia  in  the  treaty  by 
which  the  Alaska  Territory  was  transferred  to  the  United  States. 


THE   BEHRrXOx    SEA    AKIIITKATION.  523 

The  weighty  considerations  growing;  out  of  tlie  acquisition  of  that 
Territory,  with  all  the  riglits  on  hind  and  sea  inseparahly  connected 
ilierewith,  may  be  safely  left  out  of  view,  while  tlie  grounds  are  set 
forth  upon  which  this  government  rests  its  justification  for  the  ac- 
tion complained  of  Ijy  Her  Majesty's  Government." 

The  grounds  set  forth  ai'e  these  : — 

(1)  The  value  of  the  sealeries  and  the  absence  of  any  interference 
with  them  down  to  1880. 

(•2)  That  the  taking  of  seals  in  the  open  water  rapidly  leads  to 
their  extermhiation,  because  of  the  indist;riminate  slaughter  of  the 
animal,  especially  of  the  female;  with  which  slaughter  Mr.  Blaine 
contrasts  the  careful  methods  pursued  by  the  United  States  Gov- 
ernment in  killing  seals  upon  the  Islands. 

(o)  That  the  right  of  defense  by  the  United  States  against  such 
extermination  is  not  confined  to  the  three-mile  limit,  and  Mr.  Blaine 
remarks  as  follows  :  "  does  Her  Majesty's  Government  seriously 
maintain  that  the  law  of  nations  is  powerless  to  prevent  such  vio- 
lation of  the  common  rights  of  man?  Are  the  supi)orters  of  justice 
of  all  nations  to  be  declared  incompetent  to  prevent  wrongs  so 
obvious  and  so  destructive. 

"  In  the  judgment  of  this  Government,  the  law  of  the  sea  is  not 
lawlessness.  Nor  can  the  law  of  the  sea,  and  the  liberty  which  it 
confers,  and  which  it  protects,  be  perverted  to  justify  acts  which 
are  immoral  in  themselves,  which  inevitably  tend  to  results  against 
the  interests  and  against  the  welfare  of  mankind." 

By  the  treaty  of  February  29,  1892,  the  two  governments  agreed 
to  refer  the  questions  in  dispute  to  a  tribunal  of  arbitration,  to  be 
composed  of  seven  arbitrators,  two  to  be  named  by  each  of  the  con- 
tracting powers,  one  by  the  I'resident  of  the  French  liepublic,  one 
by  the  King  of  Italy,  and  one  by  the  King  of  Sweden  and  Norway- 
Article  II.  of  the  treaty  contains  the  Ave  points  of  dispute  to  be 
passed  upon  by  the  tribunal,  as  follows  :  Art.  YI.  "In  deciding  the 
matters  submitted  to  the  Arbitrators,  it  is  agreed  that  the  following 
five  points  sliall  be  sulimitted  to  them,  in  oi'der  that  their  award 
shall  embrace  a  distinct  decision  upon  each  of  said  five  points,  to  wit : — 

"  1.  What  exclusive  jurisdiction  in  the  sea  now  kncnvn  as  the 
Behring's  Sea,  and  what  exclusive  rights  in  the  seal  fisheries  there- 
in, did  Ilussia  assert  and  exercise  prior  and  \i[)  to  the  time  of  the 
cession  of  Alaska  to  the  United  States  y 

"  2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fish- 
eries recognized  and  conceded  by  Great  Britain  ? 

"3.  Was  the  body  of  water  now  known  as  the  Uchi-iug  Sea  in- 
cluded in  the  phrase  '  Pacific  Ocean,'  as  used  in  the  treaty  of  1«25 


524  '  APPENDIX. 

between  Great  Britain  and  IJiissia  ;  and  what  rights,  if  any,  in  the 
Beliring  Sea  were  held  and  exclusively  exercised  by  Kussia  after 
said  Treaty  ? 

"4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction,  and  as  to 
the  seal  tisheries  in  Beliring  Sea  east  of  the  water  boundary,  in 
the  Treaty  between  the  United  States  and  Russia  of  the  oOth  ^lareh, 
1867,  pass  unimpaired  to  the  United  States  under  that  Treaty? 

"  5.  Has  the  United  States  any  right,  and  if  so,  what  right  of  pro- 
tection or  property  in  the  fur-seals  frequenting  the  islands  of  the 
United  States  in  Behring  Sea  when  such  seals  are  found  outside 
the  ordinary  three-mile  limit?" 

In  the  event  of  a  decision  against  the  United  States  on  these 
points,  the  seventh  article  provides  for  the  establishment  of  concur- 
rent regulations  for  the  waters  beyond  the  jurisdiction  of  either 
party. 

Under  the  provisions  of  this  treaty,  the  tribunal  met  in  Paris  in 
the  spring  of  1893.     The  Arbitrators  were  as  follows  : — 

Baron  de  Courcel,  France  (President) ;  ^Marquis  Emilio  Yisconti- 
Venosta,  Italy ;  M.  Gregero  W.  W.  Gram,  Sweden  and  Xorway  ; 
Lord  Ilannen,  and  Sir  John  S.  D.  Thompson,  Enghuid  ;  and  Justice 
John  M.  Harlan,  and  Senator  John  T.  Morgan,  United  States. 

The  counsel  on  the  part  of  the  United  States  were  Messrs.  Ed- 
ward J.  Phelps,  James  C.  Carter,  Frederick  R.  Coudert,  and  Henry 
Blodgett;  on  the  part  of  England,  Sir  Charles  Russell,  Sir  Richard 
"\Vel)ster,  and  others. 

When  the  evidence  was  before  the  Tribunal,  it  appeared  that  the 
United  States  had  a  very  weak  case  in  respect  of  the  first  two  points 
to  be  considered:  and  this  was  evident  indeed  from  the  moment  of 
the  discovery  of  the  false  translations  of  certain  Russian  documents, 
imi)osed  upon  the  government  of  the  United  States  by  a  peison 
employed  by  it.  On  the  third  point,  the  decision  was  unanimous 
in  favor  of  the  English  contention.  That  being  the  state  of  the 
case  as  to  the  first  three  points,  the  fourth  was  of  no  weight  either 
way. 

Thus  the  real  issue  before  the  tribunal  was  upon  the  fifth  point, 
that  the  United  States  had  a  i-ight  of  property  in  the  seals,  and  a 
furtlier  right  to  protect  this  property  on  the  high  seas,  and  to  these 
points  the  chief  weight  of  the  American  argument  was  directed. 

On  the  question  of  property  in  the  seals,  Mr.  Carter  said :  "  The 
United  States  hold  that  tlie  ownership  of  the  islands  upon  which 
seals  breed;  that  the  habit  of  the  seals  in  regularly  resorting  thereto 
and  rearing  their  young  theref)n;  that  their  going  out  in  search  of 
food  and  i-egularly   returning  thereto,  and  all  the  facts  and  inci- 


THE    P.EIIinNG    SEA    Ar.BlTKATION.  525 

dents  of  their  relation  to  the  islands,  give  to  the  United  States  a 
property  interest  therein  ;  that  this  property  interest  was  chinned 
and  exercised  by  Russia  during  the  whole  period  of  its  scnereignty 
over  the  land  and  waters  of  Alaska;  that  England  recognized  that 
property  interest  so  far  as  recognition  is  implied  by  abstaining  from 
all  interference  with  it  during  the  whole  period  of  Russia's  owner- 
ship of  Alaska,  and  during  the  first  nineteen  years  of  the  sovereignty 
of  the  United  States. 

]Mr.  Carter  argues  at  great  length  to  i)rove,  from  the  Civil  Law  and 
the  Common  Law,  the  right  of  property  in  animals  fercn  naturae. 
He  quotes  Justinian,  Savigny,  Puffendorf,  IJracton,  IJowyer,  Yattel, 
Hautefeuille,  Kent,  and  others ;  and  the  cases  of  The  /Swans,  7  Coke, 
15b;  Keeble  v.  HicJceringill,  11  East,  574;  Amory  v.  Fhjn,  10  John., 
102;  Goff^.  Kitts,  15  Wend.,  550;  Blades  v.  ilUjgs,  12  C.  13.  X.  S., 
512  ;  Davis  v.  PoiDell,  Willes,  1787. 

On  the  question  of  the  right  to  protect  the  seals  on  the  high  seas, 
Mr.  Phelps  said,  the  case  of  the  Government  of  the  United  States  was  : 

"  1st.  That  in  view  of  the  facts  and  circumstances  established  by 
the  evidence,  it  has  such  a  property  in  the  Alaskan  seal  herd,  as  the 
natural  product  of  its  soil,  made  chiefly  available  by  its  protection 
and  expenditure,  highly  valuable  to  its  people,  and  a  considerable 
source  of  public  revenue,  as  entitles  it  to  preserve  the  herd  from  de- 
struction in  the  manner  complained  of,  b}^  an  employment  of  such 
reasonable  force  as  may  be  necessary. 

"2d.  That  irrespective  of  the  distinct  right  of  property,  in  the  seal 
herd,  the  United  States  Government  has  for  itself  and  for  its  people, 
an  interest,  an  industry,  and  a  commerce  derived  from  the  legitimate 
and  proper  use  of  the  produce  of  the  seal  herd  on  its  territory,  which  it 
is  entitled,  upon  all  principles  applicable  to  the  case,  to  protect  against 
wanton  destruction  by  individuals,  for  the  sake  of  the  small  and 
casual  profits  in  that  way  to  be  gained ;  and  that  no  part  of  the  high 
sea  is  or  ought  to  be  open  to  individuals,  for  the  purpose  of  accom- 
plishing the  destruction  of  national  interests  of  such  a  character  and 
importance. 

"  Third  That  the  United  States,  possessing  as  they  alone  possess, 
the  power  of  preserving  and  cherishing  this  valuable  interest,  are  in 
a  most  just  sense  the  trustee  thereof  for  the  benefit  of  mankind,  and 
should  be  permitted  to  discharge  their  trust  without  hindrance." 

In  support  of  this  view,  Mr.  Phelps  quotes,  Grotius,  Kent,  Twiss, 
etc.,  and  the  following  cases  :  The  Marianna  Flora ^  11  Wheaton,  41  ; 
Churrh  V.  Hubbart,  2  Cranch,  287,  Queen  v.  Keyn,  L.  R.,  2  Ex.  Div., 
63 ;  Ease  v.  Himehj,  4  Cranch,  287  ;  The  Success,  1  Dod.,  133  ;  The 
Fox,  Ed.,  314 ;  The  Snipe,  Ed.,  382. 


526  APPENDIX. 

DECISION. 

After  a  preamble  stating  the  case  suhiiiitted  for  decision,  the  full 
text  of  the  award  runs  as  follows:  (New  York  Herald^  August  16, 
1S93.):— 

"We  decide  and  determine  as  to  the  five  points  mentioned  in  ar- 
ticle 6,  as  to  whicli  our  reward  is  to  embrace  a  distinct  decision 
upon  each  of  them  : — 

"  As  to  the  first  of  said  five  points,  we,  liaron  de  Conrcel,  John  M. 
Harlan,  Lord  Ilaniien,  Sir  John  S.  D.  Thompson,  Marquis  Emilio 
Visconti-Venosta  and  Gregero  W.  W.  Gram,  being  a  majority  of 
said  arbitrators,  do  decide  as  follows  : — 

"By  the  ukase  of  1821  Russia  claimed  jurisdiction  in  the  sea  now 
known  as  Behring  Sea  to  the  extent  of  one  hundred  Italian  miles 
from  the  coasts  and  islands  belonging  to  her,  but  in  the  course  of 
the  negotiations  wdiich  led  to  the  conclusion  of  the  treaty  of  1824 
M'ith  the  United  States  and  the  treaty  of  1825  with  Great  Britain, 
Russia  admitted  that  her  jurisdiction  in  said  sea  should  be  restricted 
so  as  to  reach  a  cannon  shot  from  shore.  It  appears,  that  from  that 
time  up  to  the  time  of  the  cession  of  Alaska  to  the  United  States, 
Russia  never  asserted  in  fact  or  exercised  any  exclusive  jurisdiction 
in  Behring  Sea  or  any  exclusive  rights  to  the  seal  fisheries  therein 
beyond  the  ordinary  limit  of  territorial  waters. 

"As  to  the  second  of  the  five  points,  we,  Baron  de  Courcel,  John  31. 
Harlan,  Lord  Hannen,  Sir  John  S.  D.  Thompson,  Marquis  Emilio  Vis- 
conti-Yenosta  and  Gregero  \Y.  W.  Gram,  being  a  majority  of  said  ar- 
bitrators, decide  and  determine  that  Great  Britain  did  not  recognize  or 
concede  any  claim  upon  the  part  of  Russia  to  exclusive  jurisdiction 
as  to  the  seal  fisheries  in  Behring  Sea  outside  the  ordinary  territorial 
waters. 

"  As  to  the  tliii'd  point,  as  to  so  much  thereof  as  requires  us  to  de- 
cide whether  the  body  of  water  now  known  as  Behring  Sea  was  in- 
cluded in  the  phrase  'Pacific  Ocean'  as  used  in  the  treaty  of  1825 
between  Great  Britain  and  Russia,  Ave  unanimously  decide  and  de- 
termine that  the  body  of  water  now  known  as  Behring  Sea  was  in- 
cluded in  the  phrase  '  Pacific  Ocean '  as  used  in  said  treaty. 

"  On  the  fourth  point  Ave  decide  and  determine  that  all  the  rights 
of  Russia  to  jurisdiction  and  to  the  seal  fisheries  passed  to  the 
L'nited  States,  limited  by  the  cession." 

On  the  fifth  point  the  decision  of  the  trilnuial,  Justice  Harlan  and 
Senator  Morgan  dissenting,  was  as  follows: — 

"On  the  fifth  point,  Ave,  Baron  de  Courcel,  Lord  Ilannen,  Sir  John 
S.  D.  Thompson,  Marquis  Emilio  Visconti-Venosta  and  Gregero  W. 


THE  BEHWNG   SEA  ARBITRATION.  527 

W.  Gram,  being  the  majority  of  said  arbitrators,  decide  and  deter- 
mine that  tlie  United  States  have  no  right  to  the  protection  of  or 
property  in  the  seals  freqnenting  the  ishmds  of  tlie  United  States  in 
Behring  Sea  when  tlie  same  are  fonnd  outside  the  ordinary  three- 
mile  limit. 

"And  whereas  the  aforesaid  deternnnation  of  the  foregoing  ques- 
tions as  to  the  exclusive  jurisdiction  of  the  United  States  leaves  the 
subject  in  such  a  position  that  tlie  concurrence  of  Great  liritain  is 
necessary  to  tlie  establishment  of  regulations  for  tiie  proper  protec- 
tion and  preservation  of  fur  seals  habitually  ix'sorting  to  Behring 
Sea,  we,  Baron  de  Courcel,  Lord  ITannen,  Marquis  Emilio  Yisconti- 
Vennsta  and  Gregero  W.  W.  Gram,  being  a  majority  of  the  arbitra- 
tors, assent  to  the  whole  of  the  nine  articles  of  the  following  regula- 
tions as  necessary  outside  of  the  jurisdiction  limits  of  the  respective 
governments,  and  that  they  should  extend  over  the  waters  herein- 
after mentioned : — 

"Art.  1.— The  United  States  and  Great  B.ritain  shall  forbid 
their  citizens  and  sul)jects  respectively  to  kill,  capture  or  pursue  at 
any  time  or  in  any  maimer  v/hatever  the  animals  commonly  called 
fur  seals  within  a  zone  of  sixty  miles  around  the  Pribyloff  Islands, 
inclusive  of  the  territoritd  water,  tiie  miles  being  geographical  miles, 
sixty  to  a  degree  of  latitude. 

"  Art.  2. — The  two  governments  shall  forbid  their  citizens  or  sub- 
jects to  kill,  capture  or  pursue  in  any  maniicr  whatever  during  a 
season  extending  in  each  year  from  May  1  to  July  31  inclusive  fur 
seals  on  the  high  part  of  the  sea  in  that  part  of  the  Pacific  Ocean 
inclusive  of  Behring  Sea,  situated  north  of  the  thirty-fifth  degree  of 
north  latitude,  or  eastward  of  the  180th  degree  of  longitude  from 
Greenwich  until  it  strikes  the  water  boundary  described  in  article  1 
of  the  treaty  of  1867  between  the  United  States  and  Russia,  follow- 
ing that  line  up  to  Behring  Straits. 

"  Art.  3. — During  the  period  of  time  in  the  waters  in  which  fur- 
sealing  is  allowed  only  sailing  vessels  shall  be  permitted  to  carry  on  or 
take  part  in  fur-sealing  operations.  They  will,  however,  be  at  liberty 
to  avail  themselves  of  the  use  of  such  canoes  or  undecked  boats,  pro- 
pelled by  paddles,  oars  or  sails,  as  arc  in  common  use  as  fishing  boats. 

"  Art.  4. — Each  sailing  vessel  authorized  to  carry  on  fur-sealing 
must  be  provided  with  a  special  license  issued  for  the  purpose  by  its 
government.  Each  vessel  so  employed  shall  be  required  to  carry  a 
distinguishing  flag  prescribed  by  its  government. 

"  Art.  5. — The  masters  of  vessels  engaged  in  fur-sealing  shall  enter 
accurately  in  an  official  log-book  the  date  and  place  of  each  operation, 
the  number  and  the  sex  of  the  seals  captured  daily.     These  entries 


628  .  APPEXDIX. 

shall  be  coniinuiiicated  Ly  each  of  the  two  governments  to  each 
other  at  the  end  of  each  season. 

"  Art.  G. — The  use  of  nets,  firearms  or  explosives  is  forbidden  in 
fur-sealing-.  Tliis  restriction  sliall  not  apply  to  shotguns  when  such 
are  used  in  fisliing  outside  of  Behring  Sea  during  the  season  when 
sucli  may  lawfully  be  carried  on. 

"  Art.  7. — The  two  governments  shall  take  measures  to  control 
the  fitness  of  the  men  auth(n'ized  to  engage  in  sealing.  These 
men  sjiall  have  been  proved  fit  to  handle  with  sufficient  skill  the 
weapons  by  means  of  which  seal  fishing  is  carried  on. 

"Art.  8. — The  preceding  regulations  shall  not  ap^jly  to  Indians 
dwelHiig  on  the  coast  of  the  territories  of  the  United  States  or  Great 
Britain  carrying  on  fur-sealing  in  canoes  or  undecked  boats  not 
transported  by  or  used  in  connection  Avith  other  vessels  and  jiro- 
pelled  wholly  by  paddles,  oars  or  sails,  and  manned  by  not  more 
than  five  persons,  in  the  way  hitherto  practised  by  tlie  Indians, 
provided  that  such  Indians  are  not  employed  by  other  persons,  and 
provided  that  when  so  hunting  in  canoes  or  undecked  boats  the 
Indians  shall  not  hunt  fur  seals  outside  the  territorial  waters  under 
contract  to  deliver  skins  to  anybody.  This  exemption  is  not  to  be 
construed  to  affect  the  municipal  law  of  either  country,  nor  shall  it 
extend  to  the  waters  of  Behring  Sea  or  the  waters  around  the  Aleu- 
tian Islands.  Nothing  herein  contained  is  intended  to  interfere 
witli  the  employment  of  Indians  as  hunters  or  otherwise  in  connec- 
tion M'ith  sealing  vessels  as  heretofore. 

"  Art.  9. — The  concurrent  regulations  hereby  determined  with  a 
view  to  tlie  protection  and  preservation  of  the  fur  seals  shall  remain 
in  force  until  they  have  been  wholly  or  in  part  abolished  or  modified 
by  a  connnon  agreement  between  the  United  States  and  Great  Brit- 
ain. Said  concurrent  regulations  shall  be  submitted  every  five  years 
to  a  new  examination  in  order  to  enable  both  governments  to  con- 
sider whether  in  the  light  of  past  experience  there  is  occasion  to 
make  any  modification  thereof." 

The  arbitrators  make  a  special  finding  on  tlie  facts  agreed  upon  by 
the  agents  of  both  governments  with  reference  to  the  seizure  of  Brit- 
ish vessels  in  Behring  Sea  in  1887  and  1889.  In  addition  the  arbi- 
trators make  certain  suggestions  to  tlie  two  governments,  the  most 
important  being  that  they  should  come  to  an  understanding  to  pro- 
hibit the  killing  of  seals  on  land  or  sea  for  a  period  of  from  one  to 
three  years,  and  should  enact  regulations  to  carry  out  the  findings  of 
the  arbitrators.^ 

'  This  decision  forms  a  fitting  end  of  the  struggle  of  three  hundred  years  for 
the  freedom  of  the  seas  ;  it  is  to  be  hoped  that  it  will  not  again  be  questioned. 


THE   DECLARATION    OF    PAIilS.  529 

B. 

THE  DECLARATIOX  OF  PARrS,  185G. 

DECLARATION  KKSPECTIXG  MAUTTIMK  T.AAV,  SKiXKI)  V.Y  TIIK  PI.KXTPn- 
TENTIARIKS  OF  GREAT  BRITAIN,  AUSTRIA,  FRANCE,  PRUSSIA,  RUSSIA, 
SARDINIA,  AND  TURKEY,  ASSEMBLED  IX  CONGRESS  AT  P.UIIS,  APRIL 
16,    1856. 

The  Plenipotentiaries  ^YIlo  signed  tlie  Treat}^  of  Paris  of  tlie  30th 
of  March,  1856,  assembled  in  conference, — Considering: 

That  Maritime  LaAv,  in  time  of  war,  has  long  been  the  subject  of 
deplorable  disputes ; 

That  the  uncertainty  of  the  law,  and  of  the  duties  in  such  a 
matter,  gives  rise  to  differences  of  opinion  between  neutrals  and. 
belligerents  which  may  occasion  serious  difficulties,  and  even  con- 
flicts; 

That  it  is  consequently  advantageous  to  establish  a  uniform  doc- 
trine on  so  important  a  point ; 

That  the  Plenipotentiaries  assembled  in  Congress  at  Paris  cannot 
better  respond  to  the  intentions  by  which  their  governments  are 
animated  than  by  seeking  to  introduce  into  international  relations 
fixed  principles  in  this  respect : 

The  aboA'e-mentioned  Plenipotentiaries,  being  duly  authorized,  re- 
solved to  concert  among  themselves  as  to  the  means  of  attaining 
this  object ;  and,  having  come  to  an  agreement,  have  adopted  the 
following  solemn  declaration : 

1.  Privateering  is,  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of 
contraband  of  war. 

3.  Xeutral  goods,  with  the  exception  of  contraband  of  war,  are 
not  liable  to  capture  under  the  enemy's  flag. 

4.  Blockades,  in  order  to  be  Ijinding,  must  be  effective,  that  is  to 
say,  maintained  by  a  force  sufficient  really  to  prevent  access  to  the 
coast  of  the  enemy. 

The  Governments  of  the  undersigned  Plenipotentiaries  engage  to 
bring  the  present  Declaration  to  the  knowledge  of  the  states  which 
have  not  taken  part  in  the  Congress  of  Paris,  and  to  invite  them  to 
accede  to  it. 

Convinced  that  the  maxims  which  they  now  proclaim  cannot  but 
be  received  with  gratitude  by  the  whole  world,  the  undersigned 
Plenipotentiaries  doubt  not  that  the  efforts  of  their  governments  to 
obtain  the  general  adoption  thereof  will  be  crowned  with  full  suc- 
cess. 

84 


O30  APPENDIX. 

The  present  Declaration  is  not   and  shall  not  he  hindin,tr.  except 
between  those  Powers  who  have  acceded,  or  sliall  accede  t:)  it. 
Done  at  Paris,  April  16,  185G. 

c. 

THE  DECLAPATIOX   OF   ST.  PETERCCrKO,  18G8. 

Considering  that  the  progress  of  civilization  should  have  the 
effect  of  alleviating',  as  nmch  as  possible,  the  calamities  of  war  ; 

That  the  only  legitimate  ol)ject  which  states  should  endeavor  to 
accomplish  during  war  is  to  weaken  the  military  force  of  the 
enemy ; 

That  for  this  purpose,  it  is  sufficient  to  disable  the  greatest  possi- 
ble number  of  men ; 

That  this  object  would  be  exceeded  b}^  the  employment  of  arms 
which  uselessly  aggravate  the  sufferings  of  disabled  men,  or  render 
their  death  inevitable ; 

That  the  employment  of  such  arms  ^^'Ould,  therefore,  be  contrary 
to  the  laws  of  humanity  ; 

The  contracting  parties  engage,  mutually,  to  renounce,  in  case  of 
war  among  themselves,  the  employment,  by  their  military  or  naval 
forces,  of  any  projectile  of  less  weight  than  four  hundred  grammes, 
wiiich  is  explosive,  or  is  charged  with  fulminating  or  inflannnable 
substances. 

They  agree  to  invite  all  the  states  which  have  not  taken  part  in 
the  deliberations  of  the  International  Military  Commission,  assem- 
bled at  St.  Petersburg,  by  sending  delegates  thereto,  to  accede  to 
the  present  engagement. 

This  engagement  is  obligatory  oidy  upon  the  contracting  or  ac- 
ceding parties  thereto,  in  case  of  war  between  two  or  more  of  them- 
selves ;  it  is  not  applicable  with  regard  to  non-contracting  powers, 
or  powers  that  shall  not  have  acceded  to  it. 

It  will  also  cease  to  be  obligatory  from  the  moment  when,  in  a 
w^ar  between  contracting  or  acceding  parties,  a  non-contracting 
party,  or  a  non-acceding  party,  shall  join  one  of  the  belligei-ents. 

The  contracting  or  acceding  parties  reserve  to  themselves  the 
right  to  come  to  an  understanding,  hereafter,  whenever  a  precise 
proposition  shall  be  drawn  up,  in  view  of  future  improvements 
wliich  may  be  effected  in  the  armament  of  troops,  in  order  to  main- 
tain the  principles  which  they  have  established,  and  to  reconcile  the 
necessities  of  war  with  the  laws  of  humanity. 


THE   GENEVA   CONVENTION.  531 

D. 

TITE  GEN^EVA  CONVENTION  FOII  TTTE  AMELIORATION 
OF  TUK  CONDITION  OF  THE  SICK  AND  WOUNDED  OF 
AILAIIES  IN  THE  FIELD. 

Art.  I. — Ambulances  and  iiiilitary  hospitals  shall  be  acknowledg-erl 
to  be  neuter,  and,  as  such,  shall  be  protected  and  respected  by  bel- 
ligerents so  long  as  any  sick  or  wounded  may  be  therein.  Such  neu- 
trality shall  cease  if  the  aml)ulances  or  hospitals  should  be  held  l)y 
a  military  force. 

Art.  II. — Persons  employed  m  hospitals  and  ambulances,  com- 
prising the  staff  for  superintendence,  medical  service,  administra- 
tion, transport  of  wounded,  as  well  as  chaplains,  sliall  participate  in 
the  benefit  of  neutrality,  while  so  employed,  and  so  long  as  there 
remain  any  wounded  to  bring  in  or  to  succor. 

Art.  III. — The  persons  designated  in  the  preceding  article  may, 
even  after  occupation  by  the  enemy,  continue  to  fulfill  their  duties 
m  the  hospital  or  ambulance  which  they  serve,  or  may  withdraw  in 
order  to  rejoin  the  corps  to  which  they  belong. 

Lender  such  circumstances,  when  these  ^lersons  shall  cease  from 
their  functions,  they  shall  be  delivered  by  the  occupying  army  to 
the  outposts  of  the  enemy. 

Art.  TV. — As  the  equipment  of  military  hospitals  remains  suliject 
to  the  laws  of  war,  persons  attached  to  such  hospitals  cannot,  in 
withdrawing,  carry  aAvay  any  articles  but  such  as  are  their  private 
property. 

Under  the  same  circumstances  an  ambulance  shall,  on  the  con- 
trary, retain  its  equipment. 

Art.  V. — Inhabitants  of  the  country  who  may  bring  lielp  to  the 
woinided  shall  be  respected,  and  shall  remain  free.  The  generals  of 
the  belligerent  powers  shall  make  it  their  care  to  inform  the  inhab- 
itants of  the  appeal  addressed  to  their  humanity,  and  the  neutrality 
which  will  be  the  consequence  of  it. 

Any  wounded  man  entertained  and  taken  care  of  in  a  house  shall 
be  considered  a  protection  thereto.  Any  inhabitant  who  shall  have 
entertained  wounded  men  in  his  house  shall  be  exempted  from  the 
quartering  of  troops,  as  well  as  from  a  part  of  the  contributions  of 
war  which  may  be  imposed. 

Art.  VI. — Wounded  or  sick  soldiers  shall  be  entertained  and  taken 
care  of,  to  whatever  nation  they  may  belong. 

Commanders-in-chief  shall  have  the  power  to  deliver  immediately, 
to  the  outposts  of  the  enemy,  soldiers  who  have  been  wounded  in  an 


532  APPENDIX. 

engagement,  when  circumstances  permit  this  to  be  done,  and  with 
the  consent  of  both  parties. 

Those  who  are  recognized,  after  their  wounds  are  healed,  as  inca- 
pable of  serving,  shall  be  sent  back  to  their  own  counti-y. 

Tlie  others  may  also  be  sent  back,  on  condition  of  not  bearing 
arms  during  the  continuance  of  the  war. 

Evacuations,  together  with  the  persons  under  Avhose  direction 
they  shall  take  place,  shall  be  protected  by  an  absolute  neutrality. 

Art.  VII. — A  distinctive  and  uniform  flag  shall  be  adopted  for 
hosiptals,  ambulances,  and  evacuations.  It  must  on  every  occasion 
be  accompanied  by  the  national  flag.  An  arm  badge  (brassard)  shall 
also  be  allowed  for  individuals  neutralized,  but  the  delivery  thereof 
shall  be  left  to  military  authority. 

The  flag  and  arm  badge  shall  bear  a  red  cross  on  a  white  ground. 

Art.  YIII. — The  details  of  execution  of  the  present  convention 
shall  be  regulated  by  the  commanders-in-chief  of  belligerent  armies, 
according  to  the  instructions  of  their  respective  governments,  and  in 
conformity  with  the  general  principles  laid  down  in  this  convention. 

Art.  IX. — The  high  contracting  powers  have  agreed  to  communi- 
cate the  present  convention  to  those  governments  which  have  not 
found  it  convenient  to  send  plenipotentiaries  to  the  International 
Convention  at  Geneva,  with  an  invitation  to  accede  thereto;  the 
protocol  is  for  that  purpose  left  open. 

Art.  X. — The  present  convention  shall  be  ratified,  and  the  ratifica- 
tions exchanged  at  Berne,  in  four  months,  or  sooner  if  possible.^ 

E. 
IXSTRUCTIOXS 

FOR    TUE 
GoVERXilEXT    OF    ArMIES    OF    TUE    UxiTED    StATES    IX    TUE    FlELD. 

GEXEUAL  ORDERS,)  War  Departmext, 

>•  Adji'taxt-Gexeral's  Office, 

Xo.  100.  )  Was/iuir/to/i,  Ajjril  24,  1S6S. 

The  following  "  Instructions  for  the  Government  of  Armies  of  the 
United  States  in  the  Field,"  prepared  by  Fraxcis  Lieber,  LL.  D., 
and  revised  ])y  a  Board  of  Officers,  of  which  iMajor-General  E.  A. 
IIiTcnrocK  is  president,  having  been   apju-oved  by  the  President  of 

'  The  text  of  the  Geneva  Convention  and  of  tlie  two  pi'eceJing  Declarations, 
is  taken  from  the  Appendix  of  Davis"  International  Law. 


INSTRUCTIONS   FOR    U.    S.    ARMIES    IX    THE    FIELD.  533 

the  United  States,  he  commands  that  they  he  puhhshed  for  the  in- 
formation of  all  concerned. 

By  ouDJiii  OF  THE  Secretaky  of  AVak: 

E.  L>.  TOWXSKND, 

jissistant  A<-ljuta)d-  General. 


SECTION   I. 


Martial  Law — Military    Jurisdiction — Military  Necessity — 

RETALIATIOlSr. 

1.  A  place,  district,  or  country  occupied  hy  an  enemy  stands,  in 
consequence  of  the  occupation,  under  the  Martial  Law  of  the  invad- 
ing or  occupying  army,  whetlier  any  proclamation  declaring  Martial 
Law,  or  any  public  warning  to  the  inhabitants,  has  been  issued  or 
not.  Martial  Law  is  the  immediate  and  direct  effect  and  consequence 
of  occupation  or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  Martial  Law. 

2.  IMartial  Law  does  not  cease  during  the  hostile  occupation,  ex- 
cept by  special  proclamation,  ordered  by  the  commander-in-chief ; 
or  by  special  mention  in  the  treaty  of  peace  concluding  the  war, 
when  the  occupation  of  a  place  or  territory  continues  beyond  the 
conclusion  of  peace  as  one  of  the  conditions  of  the  same. 

3.  Martial  Law  in  a  liostile  country  consists  in  the  suspension,  by 
the  occupying  military  authority,  of  the  criminal  and  civil  law,  and 
of  the  domestic  administration  and  government  in  the  occupied  place 
or  territory,  and  in  the  substitution  of  military  rule  and  force  for 
the  same,  as  well  as  in  the  dictation  of  general  laws,  as  far  as  military 
necessity  requires  this  suspension,  substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the  administra- 
tion of  all  civil  and  penal  law  sliall  continue,  either  wlioUy  or  in 
part,  as  in  times  of  peace,  unless  otherwise  ordered  by  the  military 
authority. 

4.  Martial  Law  is  simply  military  authority  exercised  in  accord- 
ance with  the  laws  and  usages  of  war.  Military  oi)pression  is  not 
Martial  Law ;  it  is  the  abuse  of  the  power  which  that  law  confers. 
As  Martial  Law  is  executed  by  mihtary  force,  it  is  incumbent  upon 
those  who  administer  it  to  be  strictly  guided  by  tlie  principles  of 
justice,  honor,  and  humanity — virtues  adorning  a  soldier  even  moi'e 
than  other  men,  for  the  very  reason  that  he  possesses  the  power  of 
his  arms  acrainst  the  unarmed. 


534  APPENDIX. 

5.  IMartial  Law  should  be  less  stringent  in  places  and  countries 
full}'  occupied  and  fairly  conquered.  ]\Iuch  greater  severity  may  be 
exercised  in  places  or  regions  -where  actual  hostilities  exist,  or  are 
expected  and  must  be  prepared  for.  Its  most  complete  sway  is 
allowed — even  in  the  commander's  own  country — when  face  to  face 
with  the  enemy,  because  of  the  absolute  necessities  of  the  case,  and 
of  the  i^aramount  duty  to  defend  the  country  against  invasion. 

To  save  the  country  is  paramount  to  all  other  considerations. 

G.  All  civil  and  penal  law  shall  continue  to  take  its  usual  course 
in  the  enemy's  places  and  territories  under  Martial  Law,  unless  in- 
terrupted or  stopped  by  order  of  the  occupying  military  power ;  but 
all  tlie  functions  of  the  hostile  government — legislative,  executive, 
or  administrative — whetlier  of  a  general,  provincial,  or  local  character, 
cease  under  Martial  Law,  or  continue  only  with  the  sanction,  or  if 
deemed  uecessary,  the  participation  of  the  occupier  or  invader. 

7.  Martial  Law  extends  to  propert}',  and  to  persons,  Avhether  they 
are  subjects  of  the  enemy  or  aliens  to  that  government. 

8.  Consuls,  among  American  and  European  nations,  are  not  diplo- 
matic ag'ents.  Xevertheless,  their  offices  and  persons  will  be  sub- 
jected to  Martial  Law  in  cases  of  urgent  necessity  only  :  their  prop- 
erty and  business  are  not  exempted.  Any  delinquency  they  commit 
against  the  established  military  rule  may  be  punished  as  in  the  case 
of  any  other  inhabitant,  and  such  punishment  furnishes  no  reasonable 
groimd  for  international  complaint. 

9.  The  functions  of  Ambassadors,  31inisters,  or  other  diplomatic 
agents,  accredited  by  neutral  powers  to  the  hostile  government, 
cease,  so  far  as  regards  the  displaced  govei'ument ;  but  the  conquer- 
ing or  occupying  power  usually  recognizes  them  as  temporarily 
accredited  to  itself. 

10.  ]\Iartial  Law  affects  chiefly  the  police  and  collection  of  public 
revenue  and  taxes,  whether  imposed  by  the  expelled  government  or 
by  the  invader,  and  refers  mainly  to  the  support  and  efficiency  of 
the  army,  its  safety,  and  the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  dischdm  all  cruelty  and  bad 
faith  concerning  engagements  concluded  with  the  enemy  during  the 
war,  but  also  the  breaking  of  stipulations  solemnly  contracted  by 
the  belligerents  in  time  of  peace,  and  avowedly  intended  to  remain 
in  force  in  case  of  war  between  the  contracting  powers. 

It  disclaims  all  extortions  and  otlier  transactions  for  individual 
gain;  all  acts  of  private  revenge,  or  connivance  at  such  acts. 

Offences  to  the  contrai-y  shall  be  severely  punished,  and  especially 
so  if  committed  by  officers. 

12.  "Whenever  feasible.  Martial  Law  is  carried  out  in  cases  of  in- 


IXSTKUCTIONS    FOIL    U.    S.    ARMIES    IX   THE    FIELD.  E25 

(lividntU  ofFenders  by  :\IiliUiry  Conrts;  Lnt  sentences  of  deutli  sliall 
be  executed  only  with  the  approvul  of  the  chief  executive,  provided 
the  urgency  of  tlie  case  does  not  require  a  speedier  execution,  and 
then  only  with  the  approval  of  the  chief  commander. 

l.S.  Military  jurisdictio)i  is  of  two  Ivinds:  first,  that  which  is  con- 
ferred and  dehned  by  statute  ;  second,  that  which  is  derived  fi-om 
the  common  law  of  war.  Military  offences  under  the  statute  law 
must  be  tried  in  the  manner  therein  directed ;  but  military  offences 
Avhich  do  not  come  within  the  statute  nmst  be  tried  and  i)unished 
under  the  common  law  of  war.  The  character  of  the  courts  wliich 
exercise  these  jurisdictions  depends  upon  the  local  laws  of  each 
particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial  ;  while  cases  which  do  not  come  within  the  "  Rules  and 
Articles  of  War,"  or  the  jurisdiction  conferred  by  statute  on  courts- 
martial,  are  tried  by  military  commissions. 

14.  Military  necessity,  as  understood  by  modern  civilized  nations, 
consists  in  the  necessity  of  those  measures  which  are  indispensable 
for  securing  the  ends  of  the  war,  and  which  are  lawful  according  to 
the  modern  law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or 
limb  of  armed  enemies,  and  of  other  persons  whose  destruction  is 
incidentally  ujicn;oidable  in  the  armed  contests  of  the  war  ;  it  allows 
of  the  capturing  of  every  armed  enemy,  and  every  enemj^  of  impor- 
tance to  the  hostile  government,  or  of  peculiar  danger  to  the  captor ; 
it  allows  of  all  destruction  of  jiroperty,  and  obstruction  of  the  ways 
and  channels  of  traffic,  travel,  or  communication,  and  of  all  with- 
holding of  sustenance  or  means  of  life  from  the  enemy  ;  of  the  ap- 
jDropriation  of  Avhatever  an  enemy's  country  affords  necessary  for 
the  subsistence  and  safety  of  the  army,  and  of  such  deception  as  does 
not  involve  the  breaking  of  good  faith  either  positively  pledged, 
regarding  agreements  entered  into  during  the  war,  or  supposed  by 
the  modern  lavr  of  war  to  exist.  Men  who  take  up  arms  against 
one  another  in  public  war  do  not  cease  on  this  account  to  be  moral 
beings,  responsible  to  one  another,  and  to  God. 

16.  Military  necessity  does  not  admit  of  cruelty,  that  is,  the  in- 
fliction of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of 
maiming  or  wounding  except  in  fight,  nor  of  torture  to  extort  con- 
fessions. It  does  not  admit  of  the  use  of  poison  in  any  way,  nor  of 
the  wanton  devastation  of  a  district.  It  admits  of  deception,  but 
disclaims  acts  of  perfidy ;  and,  in  general,  military  necessity  does 
not  include  any  act  of  hostility  which  makes  the  return  to  peace 
unnecessarily  difficult. 


536  APPENDIX. 

17.  "War  is  not  carried  on  by  arms  alone.  It  is  lawful  to  starve 
the  hostile  belligerent,  armed  or  unarmed,  so  that  it  leads  to  the 
speedier  subjection  of  the  enemy. 

18.  When  the  commander  of  a  besieged  place  expels  the  non- 
combatants,  in  order  to  lessen  the  number  of  those  who  consume 
his  stock  of  provisions,  it  is  lawful,  tliough  an  extreme  measure,  to 
drive  them  back,  so  as  to  hasten  on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their 
intention  to  boml)ard  a  i)lace,  so  that  the  non-combatants,  and  es- 
pecially the  women  and  cliildren,  may  be  removed  before  the  bom- 
bardment commences.  But  it  is  no  infraction  of  the  common  law 
of  war  to  omit  thus  to  inform  the  enemy.  Surprise  may  be  a 
necessity. 

20.  Public  war  is  a  state  of  armed  hostility  between  sovereign 
nations  or  governments.  It  is  a  law  and  requisite  of  civilized  ex- 
istence that  men  live  in  political,  continuous  societies,  forming 
organized  units,  called  states  or  nations,  whose  constituents  bear, 
enjoy,  and  suffer,  advance  and  retrograde  together,  in  peace  and  in 
war. 

21.  The  citizen  or  native  or  a  hostile  country  is  thus  an  enem}^  as 
one  of  the  constituents  of  the  hostile  state  or  nation,  and  as  such  is 
subjected  to  the  hardships  of  tiie  war. 

22.  Xevertheless,  as  civilization  has  advanced  during  the  last 
centuries,  so  has  likewise  steadily  advanced,  especially  in  Avar  on 
land,  the  distinction  between  the  private  individual  lielonging  to  a 
hostile  country  and  the  hostile  country  itself,  with  its  men  in  arms. 
The  principle  has  been  more  and  more  acknowledged  that  the  un- 
armed citizen  is  to  be  spai-ed  in  person,  property,  and  honor  as  much 
as  the  exigencies  of  war  Avill  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried 
off  to  distant  parts,  and  the  inoffensive  individual  is  as  little  dis- 
turbed in  his  private  relations  as  the  commander  of  the  hostile  troops 
can  afford  to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues 
to  be  with  barbarous  armies,  that  the  private  individual  of  the  hostile 
country  is  destined  to  suffer  every  privation  of  libertj'  and  protec- 
tion, and  every  disruption  of  family  ties.  Protection  was,  and  still 
is  with  uncivilized  people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their  descend- 
ants in  other  portions  of  the  globe,  protection  of  the  inoffensive 
citizen  of  the  hostile  country  is  the  rule;  privation  and  disttirbance 
of  private  relations  are  the  exceptions. 

26.  Commanding  generals  may  cause  the  magistrates  and  civil 


INSTRUCTIONS   FOR    U.  S.  ARMIES    IX   TIIH    FIELD.  537 

officers  of  the  hostile  country  to  tuke  tlie  oatli  of  tciiiporai-v  alle- 
giuiice  or  an  oath  of  MeUty  to  their  own  victorious  government  or 
rulers,  and  they  may  expel  every  one  who  declines  to  do  so.  But 
Avhether  they  do  so  or  not,  the  people  and  their  civil  officers  owe 
strict  obedience  to  them  as  long-  as  they  hold  sway  over  the  district 
or  country,  at  the  peril  of  their  lives. 

27.  The  law  of  war  can  no  more  wholly  dispense  with  retaliation 
than  can  the  law  of  nations,  of  which  it  is  a  branch.  Yet  civilized 
nations  acknowledge  retaliation  as  the  sternest  feature  of  war.  A 
reckless  enemy  often  leaves  to  his  ()pi)onent  no  other  means  of  secur- 
ing himself  against  the  repetition  of  barbarous  outrage. 

28.  Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure  of 
mere  revenge,  l)ut  only  as  a  means  of  protective  retribution,  and, 
moreover,  cautiously  and  unavoidably  ;  that  is  to  say,  retaliation 
shall  only  be  resorted  to  after  careful  inquiry  into  the  real  occur- 
rence, and  the  character  of  the  misdeeds  that  may  demand  retribu- 
tion. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  farther 
and  farther  from  the  mitigating  rules  of  a  regular  war,  and  l)y  rapid 
steps  leads  them  nearer  to  the  internecine  wars  of  savages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by  the  exist- 
ence, at  one  and  the  same  time,  of  many  nations  and  great  govern- 
ments related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition  ;  war  is  the  exception.  The  ulti- 
mate object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is  for  human- 
ity.    Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  co-existence  of  modern  nations' 
and  ever  since  wars  have  become  great  national  wars,  war  has  come 
to  be  acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain 
great  ends  of  state,  or  to  consist  in  defence  against  wrong  ;  and  no 
conventional  restriction  of  the  modes  adopted  to  injure  the  enemy 
is  any  longer  admitted ;  but  the  law  of  war  imposes  many  limita- 
tions and  restrictions  on  principles  of  justice,  faith,  and  honor. 

skctiox  ii. 

Public  axd  Private  Pkopekty  of  the  Exemy — Peotectiox  of  Per- 
sons, AND  especially  Wojeen  ;  OF  Religion,  the  Arts  and 
Sciences — Punishment  of  Crimes  against  the  Inharitaxts  of 
Hostile  Countries. 

31.  A  victorious  army  appropriates  all  public  money,  seizes  all 
public  movable  property  until  further  direction  by  its  government, 


538  APPENDIX. 

and  sequester.s  f  )r  its  own  benefit  or  tliat  of  its  government  all  the 
revenues  of  real  })roperty  belonging  to  the  hostile  government  or 
nation.  The  title  to  such  real  property  remains  in  abeyance  during 
military  occupation,  and  until  the  conquest  is  made  complete. 

32.  A  victorious  array,  by  the  raartial  power  inhex'ent  in  the  same, 
may  suspend,  change,  or  abolish,  as  far  as  the  martial  j)0wer  extends, 
the  relations  which  arise  from  the  services  due,  according  to  the  ex- 
isting laws  of  the  invaded  country,  from  one  citizen,  subject,  or 
native  of  the  same  to  another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty 
of  peace  to  settle  the  permanency  of  this  change. 

33.  It  is  no  longer  considered  lawful— on  the  contrary,  it  is  held 
to  be  a  serious  breach  of  the  law  of  war — to  force  the  subjects  of  the 
enemy  into  the  service  of  the  victorious  government,  except  the  lat- 
ter should  proclaim,  after  a  fair  and  complete  conquest  of  the  hostile 
country  or  district,  that  it  is  resolved  to  keep  the  country,  district, 
or  place  permanently  as  its  own,  and  make  it  a  portion  of  its  own 
countr3\ 

34.  As  a  general  rule,  the  property  belonging  to  churches,  to  hos- 
pitals, or  other  establishments  of  an  exclusively  charitable  character, 
to  establishments  of  education,  or  foundations  for  the  promotion  of 
knowledge,  whether  public  schools,  universities,  academies  of  leai'ii- 
ing,  or  observatories,  museums  of  the  fine  arts,  or  of  a  scientitic 
character — such  property  is  not  to  be  considered  [)ublic  i)roperty  in 
the  sense  of  paragraph  31 ;  but  it  ma}^  be  taxed  or  used  when  the 
public  service  may  require  it. 

35.  Classical  works  of  art,  libraries,  scientific  collections,  or 
precious  instruments,  such  as  astronomical  telescopes,  as  well  as 
hospitals,  must  be  secured  against  all  avoidable  injury,  even  when 
they  are  contained  in  fortified  places  whilst  besieged  or  bombarded. 

30.  If  such  works  of  art,  libraries,  collections,  or  instruments  be- 
longing to  a  hostile  nation  or  government,  can  be  removed  without 
injury,  the  ruler  of  the  conquering  state  or  nation  may  order  them 
to  be  seized  and  removed  for  the  benefit  of  the  said  nation.  The  ul- 
timate ownership  is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away,  if  captured  by  the 
armies  of  the  United  States,  nor  shall  they  ever  be  privately  appro- 
priated, or  wantonly  destroyed  or  injured. 

37.  The  United  States  acknowledge  and  protect,  in  hostile  coun- 
tries occu[)ied  by  them,  religion  and  morality;  strictly  private  prop- 
erty; the  persons  of  the  inhabitants,  especially  those  of  Avomen; 
and  the  sacredness  of  domestic  relations.  Offenses  to  the  contrary 
shall  be  rigorously  punished. 


l^STKUCTIO^'S    FOR    U.    S.   AKMIES    IN    THE   FIELD.  539 

This  rule  does  not  interfei'e  Avith  tlie  rii^lit  of  tlie  victorious  in- 
vader to  tiix  the  people  or  their  property,  to  levy  forced  loans,  to 
billet  soldiers,  or  to  appropriate  property,  es[)eoially  houses,  huid, 
boats  or  ships,  and  chui'ches,  for  temporary  and  military  uses. 

88.  Private  property,  unless  forfeited  by  ei'imes  or  by  oil'enses  of 
the  owner,  can  be  seized  only  by  way  of  military  necessity,  for  the 
support  or  other  benefit  of  the  army  of  tlie  L'nited  States. 

If  the  owner  has  not  fled,  the  connnanding-  officer  will  cause  i-e- 
ceipts  to  be  given,  wliich  may  serve  the  spoliated  owner  to  obtain 
indemnity. 

39.  The  salaries  of  civil  officers  of  the  hostile  government  who 
remain  in  the  invaded  territory,  and  continue  the  worlc  of  their 
office,  and  can  continue  it  according  to  the  circumstances  arising  out 
of  the  war — such  as  judges,  administrative  or  police  officers,  officers 
of  city  or  communal  governments — are  paid  from  the  public  I'evenue 
of  the  invaded  territory,  until  the  military  government  has  reason 
wholly  or  partially  to  discontinue  it.  Salaries  or  incomes  connected 
with  purely  honorary  titles  are  always  stopped. 

40.  There  exists  no  law  or  body  of  authoritative  rules  of  action 
between  hostile  armies,  except  that  branch  of  the  law  of  nature  and 
nations  which  is  called  the  law  and  usages  of  war  on  land. 

41.  All  municipal  law  of  the  ground  on  which  the  armies  stand, 
or  of  the  countries  to  which  they  belong,  is  silent  and  of  no  effect 
between  armies  in  the  field. 

42.  Slavery,  complicating  and  confounding  the  ideas  of  property 
(that  is  of  a  thing)^  and  of  personalit}^  (tliat  is  of  Jiuinaitili/),  exists 
according  to  municipal  law  or  local  law  f)nly.  The  law  of  nature 
and  nations  has  never  acknowledged  it.  The  digest  of  the  liOman 
law  enacts  the  early  dictum  of  the  pagan  jurist,  that  "so  far  as  tlie 
law  of  nature  is  concerned,  all  men  are  equal."  Fugitives  escaping 
from  a  country  in  which  they  were  slaves,  villains,  or  serfs,  into  an- 
other country,  have,  for  centuries  past,  been  held  free  and  acknowl- 
edged free  by  judicial  decisions  of  P^nropean  countries,  even  though 
the  municipal  law  of  the  country  in  which  the  slave  had  taken  refuge 
acknowledged  slavery  within  its  own  dominions. 

43.  Therefore,  in  a  war  between  the  United  States  and  a  Ijelliger- 
ent  which  admits  of  slavery,  if  a  person  held  in  bondage  l)y  that 
belligerent  be  captured  by  or  come  as  a  fugitive  under  the  protec- 
tion of  the  military  forces  of  the  United  States,  such  person  is  im- 
mediately entitled  to  the  rights  and  pi'ivileges  of  a  freeman.  To 
return  such  person  into  slavery  would  amount  to  enslaving  a  free 
person,  and  neither  the  United  States  nor  any  officer  under  their 
authority  can  enslave  any  human  being.     Moreover,  a  person  so 


640  APPENDIX. 

made  free  by  the  law  of  war  is  under  the  shield  of  the  law  of  na- 
tions, and  the  former  owner  or  State  can  have,  b}'  the  law  of  post- 
liminy, no  belligerent  lien  or  claim  of  service. 

44.  All  wanton  violence  committed  against  persons  in  the  in- 
vaded country,  all  destruction  of  property  not  commanded  b}'^  the 
authorized  otficer,  all  robbery,  all  pillage  or  sacking,  even  after  tak- 
ing a  place  by  main  force,  all  rape,  wounding,  maiming,  or  killing 
of  such  inhabitants,  are  prohibited  under  the  penalty  of  death,  or 
such  other  severe  punishment  as  may  seem  adequate  for  the  gravity 
of  the  offense. 

A  soldier,  officer  or  private,  in  the  act  of  committing  such  violence, 
and  disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be 
lawfully  killed  on  the  sjjot  by  such  superior. 

45.  All  captures  and  booty  belong,  according  to  the  modern  law 
of  war,  primarily  to  the  government  of  the  captor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be  claimed 
under  local  law. 

46.  Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their 
position  or  power  in  the  hostile  country  for  private  gain,  not  even 
for  commercial  transactions  otherwise  legitimate.  Offenses  to  the 
contrary  committed  by  commissioned  officers  will  be  punished  with 
cashiering,  or  such  other  punishment  as  the  nattire  of  the  ott'ense 
raa}^  require;  if  by  soldiers,  they  shall  be  i)unished  according  to  the 
nature  of  the  offense. 

47.  Crimes  punishable  by  all  penal  codes,  such  as  arson,  murder, 
maiming,  assaults,  highway  robbery,  theft,  burglary,  fraud,  forgery, 
and  rape,  if  committed  by  an  American  soldier  in  a  hostile  country 
against  its  inhabitants,  are  not  only  punishable  as  at  home,  btit  in 
all  cases  in  which  death  is  not  inflicted,  the  severer  punishment 
shall  be  preferred. 

SEfTIOX  in. 

Desehteks — Peisoxeus    ok    War — Hostages — Booty    ox    the 

Battle-field. 

48.  Deserters  from  the  .\merican  army,  having  entered  the  service 
of  the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the 
United  States,  whether  by  capture,  or  being  delivered  up  to  the 
American  army ;  and  if  a  deserter  from  the  enemy,  having  taken 
service  in  the  army  of  the  United  States,  is  captured  by  the  enemy, 
and  punished  by  them  with  death  or  otherwise,  it  is  not  a  breach 
against  the  law  and  usages  of  war,  requiring  redress  or  retaliation. 


INSTRUCTIONS    FOR    U.    S.    ARMII^   IX   THE    FIEIJ).  541 

49.  A  prisoner  of  war  is  a  pul)lic  enemy  iirnied  or  attached  to  the 
hostile  army  for  active  aid,  who  has  fallen  into  the  hands  of  the 
captor,  either  lighting  or  wounded,  on  tlie  field  or  in  the  hosi)ital, 
by  individual  surrender  or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms  ;  all  men  who  belong  to 
the  rising  en  masse  of  the  hostile  country  ;  all  those  who  are  attached 
to  the  army  for  its  efficiency  and  promote  directly  the  object  of  the 
war,  except  such  as  are  hereinafter  provided  for  ;  all  disabled  jneu  or 
officers  on  the  field  or  elsewhere,  if  captured ;  all  enemies  who  have 
thrown  away  their  arms  and  ask  for  quarter,  are  prisoners  of  war, 
and  as  such  exposed  to  the  inconveniences  as  well  as  entitled  to  the 
privileges  of  a  prisoner  of  war. 

50.  Moreover,  citizens  who  accompany  an  army  for  whatever  pur- 
pose, such  as  sutlers,  editors,  or  reporters  of  journals,  or  contractors, 
if  captured,  may  be  made  prisoners  of  war,  and  be  detained  as  such. 

The  monarch  and  mendjers  of  the  hostile  reigning  family,  male  or 
female,  the  chief,  and  chief  officers  of  tlie  hostile  goveriunent,  its 
diplomatic  agents,  and  all  persons  who  are  of  particular  and  singular 
use  and  benefit  to  the  hostile  army  or  its  government,  are,  if  cap- 
tured on  belligerent  ground,  and  if  unprovided  with  a  safe  conduct 
granted  by  the  captor's  government,  prisoners  of  war. 

51.  If  the  people  of  that  portion  of  an  invaded  country  Avhich  is 
not  yet  occupied  by  the  enemy,  or  of  the  whole  country,  at  the  ap- 
proach of  a  hostile  army,  rise  under  a  duly  authorized  levy,  en 
masse  to  resist  the  invader,  they  are  now  treated  as  public  enemies, 
and  if  captured,  are  prisoners  of  war. 

52.  No  belligerent  has  the  right  to  declare  that  he  will  treat  every 
captured  man  in  arms  of  a  levy  en  masse  as  a  brigand  or  bandit. 

If,  however,  the  people  of  a  country,  or  any  portion  of  the  same, 
already  occupied  by  an  army,  rise  against  it,  they  are  violators  of 
the  laws  of  war,  and  are  not  entitled  to  their  protection. 

53.  The  enemy's  chaplains,  officers  of  the  medical  staff,  apothe- 
caries, hospital  nurses  and  servants,  if  they  fall  into  the  hands  of 
the  American  army,  are  not  prisoners  of  war,  unless  the  commander 
has  reasons  to  retain  them.  In  this  latter  case,  or  if,  at  their  own 
desire,  they  are  allowed  to  i-emain  with  their  captured  companions, 
they  are  treated  as  prisoners  of  war,  and  may  be  exchanged  if  the 
commander  sees  fit. 

54.  A  hostage  is  a  person  accepted  as  a  pledge  for  the  fulfilment  of 
an  agreement  concluded  between  belligerents  during  the  war,  or  in 
consequence  of  a  war.     Hostages  are  rare  in  the  present  age. 

55.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war, 
according  to  rank  and  condition,  as  circumstances  may  admit. 


042  APPENDIX. 

53,  A  prisoner  of  war  is  subject  to  no  punishment  for  being  a 
public  enemy,  nor  is  an 3^  revenge  wreaked  upon  liim  b}'  tlie  inten- 
tional inflection  of  any  suffering,  or  disgrace,  by  cruel  imprisonment, 
Avant  of  food,  by  nuUilation,  death,  or  any  other  barbarity. 

57.  80  soon  as  a  man  is  armed  by  a  sovereign  government,  and 
takes  the  soldier's  oath  of  fidelity,  he  is  a  belligerent;  his  killing, 
wounding,  or  other  warlike  acts,  are  no  individual  ci'imes  or  offenses. 
]^o  belligerent  has  a  right  to  declare  that  enemies  of  a  certain  class, 
color,  or  condition,  when  properly  organized  as  soldiers,  will  not  be 
treated  b}'  him  as  public  enemies. 

58.  The  law  of  nations  knows  of  no  distinction  of  color,  and  if  an 
enemy  of  the  United  States  should  enslave  and  sell  any  captured 
persons  of  their  army,  it  would  be  a  case  for  the  severest  retaliation, 
if  not  redressed  upon  complaint. 

The  United  States  cannot  retaliate  b}^  enslavement ;  therefore 
death  must  be  the  retaliation  for  this  crime  against  the  law  of  na- 
tions. 

59.  A  prisoner  of  war  remains  answerable  for  his  crimes  commit- 
ted against  the  captor's  army  or  people,  committed  before  he  was 
cai)tured,  and  for  which  he  has  not  been  punished  by  his  own  au- 
thorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory 
measures. 

60.  It  is  against  the  usage  of  modern  war  to  resolve,  in  hatred  and 
revenge,  to  give  no  quarter.  Xo  body  of  troops  has  the  right  to  de- 
clare that  it  will  not  give,  and  therefore  will  not  expect,  quarter; 
but  a  connnander  is  permitted  to  direct  his  troops  to  give  no  quarter, 
in  great  sti'aits,  when  his  own  salvation  makes  it  iinpossible  to  cum- 
ber himself  with  prisoners. 

Gl.  Troops  that  give  no  quarter  have  no  right  to  kill  enemies 
already  disabled  on  the  ground,  or  prisoners  captured  by  other 
troops. 

G2.  All  troops  of  the  enemy  known  or  discovered  to  give  no  quarter 
in  general,  or  to  any  portion  of  the  army,  receive  none. 

63.  Troops  who  fight  in  the  uniform  of  their  enemies,  without  any 
plain,  striking,  and  uniform  mark  of  distinction  of  their  own,  can 
expect  no  quarter. 

64.  If  American  troops  capture  a  train  containing  uniforms  of  the 
enemy,  and  the  commander  considers  it  advisable  to  distribute  them 
for  use  among  his  men,  some  striking  mark  or  sign  must  be  adopted 
to  distinguish  the  American  soldier  from  the  enemy. 

65.  The  use  of  the  enemy's  national  standard,  flag,  or  other  em- 
blem of  nationality,  for  the  purpose  of  deceiving  the  enemy  in  battle. 


INSTRUCTIONS    FOR   U.    S.    ARMIES    IX   TIIK   FIELD.  543 

is  an  act  of  perfidy  by  wliicli  they  lose  all  claim  to  llie  protection  of 
the  laws  of  war. 

66.  Quarter  having  been  given  to  an  enemy  by  American  troops, 
under  a  misapprehension  of  his  true  character,  he  may,  nevertlieless, 
be  ordered  to  suffer  death  if,  within  three  days  after  the  battle,  it  be 
discovered  that  he  belongs  to  a  corps  which  gives  no  quarter. 

67.  The  law  of  nations  allows  every  sovereign  government  to 
make  war  upon  another  sovereign  state,  and,  therefore,  admits  of  no 
rules  or  laws  different  from  those  of  regular  warfare,  regarding  the 
treatment  of  prisoners  of  war,  although  they  may  belong  to  the  army 
of  a  government  which  the  captor  may  consider  as  a  wanton  and 
unjust  assailant. 

68.  Modern  wars  are  not  internecine  wars,  in  which  the  killing  of 
the  enemy  is  the  object.  The  destruction  of  the  enemy  in  modern 
war,  and,  indeed,  modern  war  itself,  are  means  to  obttiin  that  object 
of  the  belligerent  which  lies  beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon,  except 
to  drive  them  in,  or  when  a  positive  order,  special  or  general,  has 
been  issued  to  that  effect. 

70.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells,  or  food, 
or  arms,  is  wholly  excluded  from  modern  warfare.  lie  that  uses  it 
puts  himself  out  of  the  pale  of  the  law  and  usages  of  war. 

71.  Whoever  intentionally  inflicts  additional  wounds  on  an  enemy 
already  wholly  disabled,  or  kills  such  an  enemy,  or  who  orders  or 
encourages  soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted, 
whether  he  belongs  to  the  army  of  the  United  States,  or  is  an  enemy 
captured  after  having  committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person  of  a  prisoner,  such 
as  watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the 
American  army  as  the  private  property  of  the  prisoner,  and  the 
appropriation  of  such  valuables  or  money  is  considered  dishonorable, 
and  is  prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  prisoners, 
or  in  their  possession,  they  shall  be  taken  from  them,  and  the  sur- 
plus, after  providing  for  their  own  support,  appropriated  for  the  use 
of  the  army,  under  the  direction  of  the  commander,  unless  otherwise 
ordered  by  the  government.  Nor  can  prisoners  claim,  as  private 
property,  large  sums  found  and  captured  in  their  train,  although 
they  had  been  placed  in  the  private  luggage  of  the  prisoners. 

73.  All  officers,  when  captured,  must  surrender  their  side-arms  to 
the  captor.  They  may  be  restored  to  the  prisoner  in  marked  cases, 
by  the   commander,  to   signalize  admiration  of  his   distinguished 


54-1  APPENDIX. 

Lraveiy,  or  approbation  of  his  liumane  treatment  of  prisoners  before 
his  capture.  Tlie  captured  officer  to  whom  they  may  be  restored 
cannot  wear  them  during  captivity. 

74.  A  prisoner  of  war  being-  a  public  enemy,  is  the  prisoner  of  the 
government,  and  not  of  tlie  captor.  No  ransom  can  be  paid  l)y  a 
prisoner  of  Avar  to  his  indivithial  captor,  or  to  any  officer  in  command. 
The  government  alone  releases  captives,  according  to  rules  prescribed 
by  itself. 

75.  Prisoners  of  war  are  subject  to  confinement  or  imprisonment 
such  as  may  be  deemed  necessary  on  account  of  safety,  but  they  are 
to  be  subjected  to  no  other  intentional  suffering  or  indignit^^  The 
confinement  and  mode  of  treating  a  prisoner  may  be  varied  during 
his  captivity  according  to  the  demands  of  safety. 

76.  Prisoners  of  v.'dY  shall  be  fed  upon  plain  and  wholesome  food 
whenever  practicable,  and  treated  with  humanity. 

Tlie}^  may  be  required  to  work  for  the  benefit  of  the  captor's 
government,  according  to  their  rank  and  condition. 

77.  A  prisoner  of  war  who  escapes  may  be  shot,  or  otherwise  killed 
in  his  flight;  but  neither  death  nor  any  other  punishment  shall  be 
inflicted  upon  him  simply  for  his  attempt  to  escape,  which  the  law 
of  war  does  not  consider  a  crime.  Stricter  means  of  security  shall 
be  used  after  an  unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a 
united  or  general  escape,  the  conspirators  may  be  rigorously  punished, 
even  with  death ;  and  capital  punishment  may  also  be  inflicted  upon 
prisoners  of  war  discovered  to  have  plotted  rebellion  against  the 
authorities  of  the  captors,  whether  in  union  with  fellow-prisoners  or 
other  persons. 

78.  If  prisoners  of  war,  having  given  no  pledge  nor  made  any 
promise  on  their  honor,  forcibly  or  otherwise  escape,  and  are  captured 
again  in  battle,  after  having  rejoined  their  own  army,  they  shall  not 
be  punished  for  their  escape,  but  shall  be  treated  as  simple  prisoners 
of  war,  although  they  will  be  subjected  to  stricter  onflnement. 

79.  Every  captured  wounded  enemy  shall  be  medically  treated, 
according  to  the  ability  of  the  medical  staff. 

80.  Honorable  men,  when  captured,  will  abstain  from  giving  to 
the  enemy  information  concerning  their  own  army,  and  the  modern 
law  of  war  permits  no  longer  the  use  of  any  \iolence  against  prisoners 
in  order  to  extort  the  desired  information,  or  to  punish  them  for 
having  given  false  information. 


INSTRUCTIONS   FOR   U.   S.   AR]\IIES   IN   THE   FIELD.  545 

SECTION  IV. 

Partisans — Ar^nied  ene^mies  not  EKLONoiNr,  to  the  Hostile  Army 
— Scouts — Armed  Proavlers — War-rkiu:ls. 

81.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their 
army,  l)ut  belonging  to  a  corps  which  acts  detached  from  the  main 
body  for  the  purpose  of  making  inroads  into  the  territory  occupied 
by  the  enemy.  If  captured,  they  are  entitled  to  all  the  privileges  of 
the  prisoner  of  war. 

82.  Men,  or  squads  of  men,  who  commit  hostilities,  whether  by 
fighting,  or  inroads  for  destruction  or  plunder,  or  by  raids  of  any 
kind,  without  commission,  without  being  part  and  portion  of  the 
organized  hostile  army,  and  without  sharing  continuously  in  the  war, 
but  who  do  so  with  intermitting  returns  to  their  homes  and  avoca- 
tions, or  with  the  occasional  assumption  of  the  semblance  of  peace- 
ful pursuits,  divesting  themselves  of  the  character  or  ai')]:»earance  of 
soldiers — such  men,  or  squads  of  men,  are  not  public  enemies,  and 
therefore,  if  captured,  are  not  entitled  to  the  privileges  of  prisoners 
of  war,  but  shall  be  treated  summarily  as  highway  rol)bers  or  pirates. 

83.  Scouts  or  single  soldiers,  if  disguised  in  the  dress  of  the 
countrj^,  or  in  the  uniform  of  the  army  hostile  to  their  own,  emi)loyed 
in  obtaining  information,  if  found  within  or  lurking  about  the  lines 
of  the  captor,  are  treated  as  spies,  and  suffer  death. 

84.  Armed  prowlers,  by  whatever  names  they  mnj  be  called,  or 
persons  of  the  enemy's  territory,  who  steal  within  tlie  lines  of  the^ 
hostile  army,  for  the  purpose  of  robbing,  killing,  or  of  destroying 
bridges,  roads,  or  canals,  or  of  robbing  or  destroying  the  mail,  or  of 
cutting  the  telegraph  wires,  are  not  entitled  to  the  privileges  of  the 
prisoner  of  war. 

85.  War-rebels  are  persons  within  an  occupied  territory  who  rise 
in  arms  against  the  occupying  or  conquering  army,  or  against  the 
authorities  established  by  the  same.  If  captured,  they  may  suffer 
death,  whether  they  rise  singly,  in  small  or  large  bands,  and  whether 
called  upon  to  do  so  by  their  own,  but  expelled,  government  or  not. 
The}^  are  not  prisoners  of  war ;  nor  are  they,  if  discovered  and  secured 
before  their  conspiracy  has  matured  to  an  actual  rising,  or  to  armed 
violence. 

section   v. 

Safe-conduct — Spies — War-traitors — Captured  Messengers — 
Abuse  of  the  Flag  of  Truce. 

86.  All  intercourse  between  the  territories  occupied  by  belligerent 

35 


546  APPEXDIX. 

armies,  whether  by  traflSc,  by  letter,  by  travel,  or  in  any  other  way, 
ceases.  This  is  the  p'eneral  rule,  to  be  observed  without  sjiecial  proc- 
lamation. 

Exceptions  to  this  rule,  whether  b}^  safe-conduct,  or  permission  to 
trade  on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel 
from  one  teri'itory  into  the  other,  can  take  place  only  according  to 
agreement  approved  by  the  government,  or  by  the  highest  military 
authority. 

Contraventions  of  this  rule  are  highly  punishable. 

87.  Ambassadors,  and  all  other  dii^lomatic  agents  of  neutral 
powers,  accredited  to  the  enem}^  may  receive  safe-conducts  through 
the  territories  occupied  by  the  belligerents,  unless  there  are  military 
reasons  to  the  contrary,  and  unless  they  may  reach  the  place  of  their 
destination  conveniently  by  another  route.  It  implies  no  interaa- 
tional  affront  if  the  safe-conduct  is  declined.  Such  passes  are  usually 
given  by  the  supreme  authority  of  the  state,  and  not  by  subordinate 
officers. 

88.  A  spy  is  a  person  who  secretly,  in  disguise  or  under  false  pre- 
tense, seeks  information  with  the  intention  of  communicating  it  to 
the  enemy. 

The  spy  is  punishable  with  death  b}"  hanging  by  the  neck,  whether 
or  not  he  succeed  in  obtaining  the  information  or  in  conveying  it  to 
the  enemy. 

89.  If  a  citizen  of  the  United  States  obtains  information  in  a  legit- 
imate manner,  and  betrays  it  to  the  enemy,  be  he  a  military  or  civil 
officer,  or  a  private  citizen,  he  shall  suffer  death. 

90.  A  traitor  under  the  law  of  war,  or  a  war-traitor,  is  a  person  in 
a  place  or  district  under  martial  law  who,  unauthorized  by  the  mili- 
tary commander,  gives  information  of  any  kind  to  the  enem}^  or 
holds  intercourse  with  him. 

91.  The  war-traitor  is  always  severely  punished.  If  his  offense 
consists  in  betraying  to  tlie  enemy  anything  concerning  the  condi- 
tion, safety,  operations  or  jjlans  of  the  troops  holding  or  occupying 
the  place  or  district,  his  punisliinent  is  death. 

92.  If  the  citizen  or  subject  of  a  country  or  place  invaded  or  con- 
quered gives  information  to  his  own  government,  from  which  he  is 
separated  by  the  hostile  army,  or  to  the  army  of  his  government,  he 
is  a  war-traitor,  and  death  is  the  penalty  of  his  offense. 

93.  All  armies  in  the  field  stand  in  need  of  guides,  and  impress 
them  if  they  cannot  obtain  them  otherwise. 

94.  No  person  having  been  forced  by  the  enemy  to  serve  as  guide 
is  punishable  for  having  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves 


INSTRUCTIONS   FOll    U.    S.    AKMrKS    IX   Tin-:    FIICLD.  ')47 

as  a  guide  to  tlie  eneni}',  or  offers  to  do  so,  lie  is  deeiiit'd  a  Avar- 
traitor,  and  shall  suffer  death. 

96.  A  citizen  serving  voluntarily  as  a  guide  against  his  own  eoun- 
try  comniils  treason,  and  will  be  dealt  with  aceordiug  to  the-  law 
of  his  country. 

97.  Guides,  when  it  is  clearly  proved  that  they  have  misled  inten- 
tionally, may  be  put  to  death. 

98.  All  unauthorized  or  secret  communication  willi  the  enemy  is 
considered  treasonable  by  the  law  of  war. 

Foreign  residents  in  an  iuvaded  oi-  occupied  territory,  or  foreign 
visitors  in  the  same,  can  claim  no  immunity  from  this  law.  They 
may  communicate  Avith  foreign  parts,  or  with  the  inhabitants  of  the 
hostile  country,  so  far  as  the  military  authority  permits,  but  no 
further.  Instant  expulsion  from  the  occupied  territory  would  be 
the  very  least  punishment  for  the  infraction  of  this  rule. 

99.  A  messenger  carrying  written  dispatches  or  verbal  messages 
from  one  portion  of  the  army,  or  from  a  besieged  place,  to  another 
portion  of  the  same  army,  or  its  government,  if  armed,  and  in  the 
uniform  of  his  army,  and  if  captured  while  doing  so,  in  the  territor_y 
occupied  by  the  enemy,  is  treated  by  the  captor  as  a  prisoner  of  war. 
If  not  in  uniform,  nor  a  soldier,  the  circumstances  connected  Avith 
his  capture  must  determine  the  disposition  that  shall  be  made  of  him. 

100.  A  messenger  or  agent  who  attempts  to  steal  through  the  ter- 
ritory occupied  by  the  enemy,  to  further,  in  any  manner,  the  inter- 
ests of  the  enemy,  if  captured,  is  not  entitled  to  the  privileges  of  the 
prisoner  of  war,  and  may  be  dealt  with  according  to  the  cii'cum- 
stances  of  the  case. 

101.  While  deception  in  war  is  admitted  as  a  just  and  necessary 
means  of  hostility,  and  is  consistent  with  honorable  warfare,  the 
common  law  of  war  allows  even  capital  punishment  for  clandestine 
or  treacherous  attempts  to  injure  an  enemy,  because  they  are  so 
dangerous,  and  it  is  so  difficult  to  guard  against  them. 

10'2.  The  law  of  war,  like  the  criminal  law  regarding  other  offenses, 
makes  no  difference  on  account  of  the  difference  of  sexes,  concerning 
the  spy,  the  war-traitor,  or  the  war-rebel. 

103.  Spies,  war- traitors,  and  war-rebels,  are  not  exchanged  accord- 
ing to  the  common  law  of  war.  The  exchange  of  such  persons  would 
require  a  special  cartel,  authorized  by  the  government,  or,  at  a  great 
distance  from  it,  by  the  chief  commander  of  the  army  in  the  field. 

104.  A  successful  spy  or  war-traitor,  safely  returned  to  his  o\Am 
army,  and  afterAvards  captured  as  an  enemy,  is  not  sul)ject  to  pun- 
ishment for  his  acts  as  a  spy  or  Avar-traitor,  but  he  may  be  held  in 
closer  custody  as  a  person  individually  dangerous. 


o48  APPENDIX. 

sectiox  yi. 
Exchange  of  Pkisoxers — Flags  of  Tkuce — Flags  of  Protection". 

105.  Exeliang'es  of  prisoners  take  place — number  for  number — 
rank  for  rank — wounded  for  wounded — with  added  condition  for 
added  condition — sucli,  for  instance,  as  not  to  serve  for  a  certain 
period. 

106.  In  exchanging  prisoners  of  war,  such  numbers  of  persons  of 
inferior  rank  maybe  substituted  as  an  equivalent  for  one  of  superior 
rank  as  may  be  agreed  upon  by  cartel,  Avhich  requires  the  sanction 
of  the  government,  or  of  the  commander  of  the  army  in  the  field. 

107.  A  prisoner  of  war  is  in  honor  bound  truly  to  state  to  the  cap- 
tor his  rank ;  and  he  is  not  to  assume  a  lower  rank  than  belongs  to 
him,  in  order  to  cause  a  more  advantageous  exchange ;  nor  a  higher 
rank,  for  the  purpose  of  obtaining  better  treatment. 

Offenses  to  the  contrary  have  been  justly  punished  by  the  com- 
manders of  released  prisoners,  and  may  be  good  cause  for  refusing 
to  release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  war  remaining  after  an 
exchange  has  taken  place  is  sometimes  released  either  for  the  pay- 
ment of  a  stipulated  sum  of  money,  or,  in  urgent  cases,  of  provision, 
clothing,  or  other  necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to 
both  belligerents.  If  no  general  cartel  has  been  concluded,  it  cannot 
be  demanded  by  either  of  them.  Xo  belligerent  is  obliged  to  ex- 
change prisoners  of  war. 

A  cartel  is  voidable  so  soon  as  either  party  has  violated  it. 

110.  Xo  exchange  of  prisoners  shall  be  made  except  after  complete 
capture,  and  after  an  accurate  accotmt  of  them,  and  a  list  of  the 
captured  officers,  has  been  taken. 

111.  The  bearer  of  a  flag  of  truce  cannot  insist  upon  being  ad- 
mitted. He  must  always  be  admitted  with  great  caution.  Unneces- 
sary frequency  is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  himself  during  an  engage- 
ment, he  can  be  admitted  as  a  very  rare  exception  only.  It  is  no 
breach  of  good  faith  to  retain  such  a  flag  of  truce,  if  admitted  during 
the  engagement.  Firing  is  not  required  to  cease  on  the  appearance 
of  a  flag  of  truce  in  battle. 

113.  If  the  l)earer  of  a  flag  of  truce,  presenting  himself  duiing  an 
engagement,  is  killed  or  wounded,  it  furnishes  no  ground  of  com- 
plaint whatever. 


INSTRUCTIONS   FOR    U.    S.    ARMIES   IN    THE    FIELD.  549 

114.  If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce  has 
been  abused  for  surreptitiously  obtahiing  military  knowledge,  the 
bearer  of  the  flag  thus  abusing  his  sacred  character  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is 
its  sacredness,  that  while  its  abuse  is  an  especially  heinous  offense, 
great  caution  is  requisite,  on  the  other  hand,  in  convicthig  the  bearer 
of  a  flag  of  truce  as  a  spy. 

115.  It  is  customary  to  designate  by  certain  flags  (usually  yellow), 
the  hospitals  in  places  which  are  shelled,  so  that  the  besieging  enemy 
may  avoid  firing  on  them.  The  same  has  been  done  in  battles,  when 
hospitals  are  situated  within  the  field  of  the  engagement. 

116.  Honorable  belligerents  often  request  that  the  hospitals  within 
the  territory  of  the  enemy  may  be  designated,  so  that  they  may  be 
spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags  or 
signals  of  protection  as  much  as  the  contingencies  and  tlie  necessi- 
ties of  the  fight  will  permit. 

117.  It  is  justly  considered  an  act  of  bad  faith,  of  infamy  or  fiend- 
ishness,  to  deceive  the  enemy  by  flags  of  protection.  Such  an  act  of 
bad  faith  may  be  good  cause  for  refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes  requested  the  be- 
sieged to  designate  the  buildings  containing  collections  of  works 
of  art,  scientific  museums,  astronomical  observatories,  or  precious 
libraries,  so  that  tlieir  destruction  may  be  avoided  as  much  as  pos- 
sible. 

sectio:n  VII. 
The  Parole. 

119.  Prisoners  of  war  maybe  released  from  captivity  by  exchange, 
and,  under  certain  circumstances,  also  by  parole. 

120.  The  term  parole  designates  the  pledge  of  individual  good 
faith  and  honor  to  do,  or  to  omit  doing,  certain  acts  after  he  wiio 
gives  his  parole  shall  have  been  dismissed,  wholly  or  partially,  from 
the  power  of  the  captor. 

121.  The  pledge  of  the  parole  is  always  an  individual  but  not  a 
private  act. 

122.  The  parole  applies  chiefly  to  prisoners  of  war  whom  the  cap- 
tor allows  to  return  to  their  country,  or  to  live  in  greater  freedom 
within  the  captor's  country  or  territory,  on  conditions  stated  in  the 
parole. 

123.  Pelease  of  prisoners  of  war  by  exchange  is  the  general  rule ; 
release  by  parole  is  the  exception. 


OoO  APPENDIX. 

1-24.  Breaking  the  parole  is  ])aiiislied  with  death  when  tlie  person 
breaking  the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must  be  kept  by 
tlie  belligerents. 

Vlr).  When  paroles  are  given  and  received,  there  must  be  an  ex- 
change of  two  written  documents,  in  which  the  name  and  rank  of 
the  paroled  individuals  are  accurately  and  truthfully  stated. 

12G.  Commissioned  officers  only  are  allowed  to  give  their  parole, 
and  they  can  give  it  only  Avitli  the  permission  of  their  superior,  as 
long  as  a  superior  in  rank  is  within  reach. 

127.  Xo  non-commissioned  officer  or  private  can  give  his  parole 
except  through  an  officer.  Individual  paroles  not  given  through  an 
officer  are  not  oidy  void,  but  subject  the  individual  giving  them  to 
the  pimishment  of  death  as  deserters.  The  only  admissible  excep- 
tion is  where  individuals,  properly  separated  from  their  commands, 
have  suffered  long  confinement  without  the  possibility  of  being 
paroled  tlirough  an  officer. 

12S.  Xo  paroling  on  the  battle-field,  no  paroling  of  entire  bodies 
of  troops  after  a  battle,  and  no  dismissal  of  large  numbers  of  prison- 
ers, with  a  general  declaration  that  they  are  paroled,  is  permitted, 
or  of  any  value. 

129.  In  capitulations  for  the  surrender  of  strong  places  or  fortified 
camps,  the  commanding  officer,  in  cases  of  urgent  necessity,  may 
agree  that  the  troops  under  his  connnand  shall  not  fight  again  during 
the  war,  unless  exchanged. 

130.  The  usual  pledge  given  in  the  parole  is  not  to  serve  during 
the  existing  war,  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field,  against 
the  paroling  belligerent  or  his  allies  actively  engaged  in  the  same 
war.  Tliese  cases  of  breaking  the  parole  are  patent  acts,  and  can 
be  visited  with  the  punishment  of  death ;  but  the  pledge  does  not 
refer  to  internal  service,  such  as  recruiting  or  drilluig  the  recruits, 
fortifying  places  not  besieged,  quelling  civil  commotions,  fighting 
against  belligerents  unconnected  witli  the  paroling  belligei-ents,  or 
to  civil  or  diplomatic  service  for  which  the  paroled  officer  may  be 
employed. 

131.  If  the  government  does  not  approve  of  the  parole,  the  paroled 
officer  must  return  into  captivity;  and  should  the  enemy  refuse  to 
receive  him,  he  is  free  of  his  parole. 

132.  A  belligerent  government  may  declare,  by  a  general  order, 
whether  it  will  allow  paroling,  and  mi  what  conditions  it  will  alhnv 
it.     Such  order  is  communicated  to  the  enenl3^ 

138.  Xo  prisoner  of  war  can  be  forced  by  the  hostile  government 


INSTRUCTIONS   FOR    U.    S.    AIIMIKS    IN    THE   FIELD.  551 

to  parole  himself,  and  no  government  is  obliged  to  parole  prisoners 
of  war,  or  to  parole  all  captured  officers  if  it  paroles  any.  As  tlie 
pledging  of  the  parole  is  an  individual  act,  so  is  parohng,  on  the 
other  hand,  an  act  of  choice  on  tlie  part  of  the  belligerent. 

134.  The  commander  of  an  occupying  army  may  recpiire  of  the 
civil  officers  of  the  enemy,  and  of  its  citizens,  any  pledge  he  may 
consider  necessary  for  the  safety  or  security  of  bis  army,  and  ui)on 
their  failure  to  give  it,  he  may  arrest,  confine,  or  detain  them. 

section"  viii. 
Armistice — Capitulation. 

135.  An  armistice  is  the  cessation  of  active  hostilities  for  a  period 
agreed  upon  between  belligerents.  It  must  be  agreed  upon  in  writ- 
ing, and  duly  ratified  by  the  higliest  authorities  of  the  contending 
parties. 

136.  If  an  armistice  be  declared,  without  conditions,  it  extends  no 
further  than  to  require  a  total  cessation  of  hostilities  along  the  front 
of  both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed, 
and  must  be  rigidly  adhered  to  by  both  parties.  If  eitlier  party 
violates  any  express  condition,  the  armistice  may  be  declared  null 
and  void  by  the  other. 

137.  An  armistice  may  be  general,  and  valid  for  all  points  and 
lines  of  the  belligerents ;  or  special — that  is,  referring  to  certain 
troops  or  certain  localities  only. 

An  armistice  may  be  concluded  for  a  definite  time ;  or  for  an  in- 
definite time,  during  which  either  belligerent  may  resume  hostilities 
on  giving  the  notice  agreed  upon  to  the  f)ther. 

138.  The  motives  which  induce  the  one  or  the  other  belligerent  to 
conclude  an  armistice,  whether  it  be  expected  to  be  preliminary  to  a 
treaty  of  peace,  or  to  prepare  during  the  ai'mistice  for  a  moi-e  vigor- 
ous prosecution  of  the  war,  do  in  no  way  affect  the  character  of  the 
armistice  itself. 

139.  An  armistice  is  binding  upon  the  belligerents  from  the  day  of 
the  agreed  commencement ;  but  the  officers  of  the  armies  are  re- 
sponsible from  the  day  only  when  they  receive  official  information 
of  its  existence. 

140.  Commanding  officers  have  the  right  to  conclude  armistices 
bindhig  on  the  district  overwbich  their  command  extends ;  but  such 
armistice  is  subject  to  the  ratificaticm  of  the  superior  authority,  and 
ceases  so  soon  as  it  is  made  known  to  the  enemy  that  the  armistice 


552  APPENDIX. 

is  not  ratified,  even  if  a  certain  time  for  tlie  elapsing  between  giving 
notice  of  cessation  and  tlie  resumption  of  hostilities  should  have 
been  stipulated  for. 

1-41.  It  is  incumbent  upon  the  contracting  parties  of  an  armistice 
to  stipulate  what  intercourse  of  persons  or  traffic  between  the  in- 
habitants of  the  territories  occupied  by  the  hostile  armies  shall  be 
allowed,  if  any. 

If  nothing  is  stipulated,  the  intercourse  remains  suspended,  as 
during  actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  temporary  peace ;  it  is  only 
the  suspension  of  military  operations  to  the  extent  agreed  upon  by 
the  parties. 

14.3.  When  an  armistice  is  concluded  between  a  fortified  place  and 
the  army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this  sub- 
ject that  the  besieger  must  cease  all  extension,  perfection,  or  advance 
of  his  attacking  work,  as  much  so  as  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among  martial  jurists, 
whether  the  besieged  have  the  right  to  repair  breaches  or  to  erect 
new  works  of  defense  within  the  place  during  an  armistice,  this 
point  should  be  determined  by  express  agreement  between  the 
parties. 

144.  So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no 
right  to  demolish,  destroy,  or  injure  the  works,  arms,  stores,  or  am- 
munition, in  his  possession,  during  the  time  which  elapses  between 
the  signing  and  the  execution  of  the  capitulation,  unless  otherwise 
stipulated  in  the  same. 

145.  When  an  armistice  is  clearly  broken  by  one  of  the  parties, 
the  other  party  is  released  from  all  obligation  to  observe  it. 

14G.  Prisoners,  taken  in  the  act  of  breaking  an  armistice,  must 
be  treated  as  prisoners  of  war,  the  officer  alone  being  responsible 
who  gives  the  order  for  such  a  violation  of  an  armistice.  The  high- 
est authority  of  the  belligei-ent  aggrieved  may  demand  redress  for 
the  infraction  of  an  armistice. 

147.  Belligerents  sometimes  conclude  an  armistice  while  their 
plenipotentiaries  are  met  to  discuss  the  conditions  of  a  treaty  of 
peace;  but  plenipotentiaries  may  meet  without  a  preliminary  armi- 
stice: in  the  latter  case,  the  war  is  carried  on  without  any 
abatement. 

SFXTIOX    IX. 
ASSASSINATIOX. 

14S.  The  law  of  war  does  not  allow  proclaiming  either  an  indi- 


INSTRUCTIONS   FOK    U.    S.    ARMIES    IN   THE    FIELD.  5.53 

vicinal  belonginc^  to  the  hostile  army,  or  a  citizen,  or  a  subject  of  the 
hostile  o-overninent,  an  outlaw,  who  may  be  slain  without  trial  by 
any  captor,  any  more  than  tlie  modern  law  of  peace  allows  sucli  in- 
ternational outlawry  ;  on  the  contraiy,  it  abhors  such  outrage.  The 
sternest  retaliation  should  follow  the  nmrder  conmiitted  iu  conse- 
quence of  such  proclamation,  made  by  whatever  authority.  Civil- 
ized nations  look  with  horror  upon  ott'ei-s  of  rewards  for  the  assas- 
sination of  enemies,  as  relapses  into  barbarism. 

section  x. 
Insurrection — Civil  War — Rebellion. 

149.  Insurrection  is  the  rising-  of  people  in  arms  against  their 
government,  or  a  portion  of  it,  or  against  one  or  more  of  its  laws,  or 
against  an  ofiicer  or  officers  of  the  governnient.  It  may  be  confined 
to  mere  armed  resistance,  or  it  may  have  greater  ends  in  view. 

150.  Civil  war  is  war  between  two  or  more  portions  of  a  country  or 
state,  each  contending  for  the  mastery  of  the  whole,  and  each  claim- 
ing to  be  the  legitimate  government.  The  term  is  also  sometimes 
applied  to  war  of  rebellion,  when  the  rebellious  provinces  or  portions 
of  the  State  are  contiguous  to  those  contahiing  the  seat  of  govern- 
ment. 

151.  The  term  rebeUion  is  applied  to  an  insurrection  of  large  ex- 
tent, and  is  usuall}^  a  war  between  the  legitimate  government  of  a 
countiy  and  portions  or  provinces  of  the  same  who  seek  to  throw  off 
their  allegiance  to  it,  and  set  up  a  government  of  their  own. 

152.  When  humanity  induces  the  adoption  of  the  rules  of  regu- 
lar war  toward  rebels,  whether  the  adoption  is  partial  or  entire,  it 
does  in  no  way  whatever  imply  a  partial  or  complete  acknowledg- 
ment of  their  government,  if  tliey  have  set  up  one,  or  of  them,  as  an 
independent  or  sovereign  power.  Neutrals  have  no  right  to  make 
the  adoption  of  the  rules  of  war  by  the  assailed  government  toward 
rebels  the  ground  of  their  own  acknowledgment  of  the  revolted  peo- 
ple as  an  independent  power. 

153.  Treathig  captured  rel)els  as  prisoners  of  war,  exchanging 
them,  concluding  of  cartels,  capitulations,  or  other  Avarlike  agree- 
ments with  them ;  addressing  officers  of  a  rebel  army  by  the  rank 
they  may  have  in  the  same;  accepting  flags  of  truce;  or,  on  the 
other  hand,  proclaiming  martial  law  in  their  territoiy,  or  levying 
war-taxes  or  forced  loans,  or  doing  any  other  act  sanctioned  or  de- 
manded by  the  law  and  usages  of  public  war  between  sovereign  bel- 
ligerents, neither  proves  nor  establishes  an  acknowledgment  of  the 


554  APPENDIX. 

rebellious  people,  or  of  the  government  which  they  may  have  erected, 
as  a  public  or  sovereign  power.  Xor  does  the  adoption  of  the  rules 
of  war  toward  rebels  iniph^  an  engagement  with  tliem  extending  be- 
yond the  limits  of  these  rules.  It  is  victory  in  the  field  that  ends 
the  strife,  and  settles  the  future  relations  between  the  contending 
parties. 

154.  Treating,  in  the  field,  the  rebellious  enemy  according  to  the 
law  and  usages  of  war,  has  never  prevented  the  legitimate  govern- 
ment from  trying  the  leaders  of  the  rebellion  or  chief  rebels  for 
high  treason,  and  from  treating  them  accordingly,  unless  they  are 
included  in  a  general  amnesty. 

155.  All  enemies  in  regular  war  are  divided  into  two  general 
classes;  that  is  to  say,  into  combatants  and  non-combatants,  or  un- 
armed citizens  of  the  hostile  goverinnent. 

The  military  conunander  of  the  legitimate  government,  in  a  war  of 
rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted  por- 
tion of  the  country  and  the  disloyal  citizen.  The  disloyal  citizens 
may  further  be  classified  into  those  citizens  known  to  sympathize 
Willi  tlie  rebellion,  without  positively  aiding  it,  and  those  who, 
without  taking  up  arms,  give  positive  aid  and  comfort  to  the  rebellious 
enemy,  without  being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency  require  that  the  mili- 
tary commander  protect  the  manifestly  loyal  citizens,  in  revolted 
territories,  against  the  hardships  of  the  war,  as  much  as  the  com- 
mon misfortune  of  all  war  admits. 

The  commander  will  throw  the  burden  of  the  Avar,  as  mucli  as  lies 
within  his  power,  on  the  disloj^al  citizens  of  tlie  revolted  portion  or 
province,  suV)jecting  tliem  to  a  stricter  police  than  the  non-com])at- 
ant  enemies  have  to  suffer  in  regular  wdv  ;  and  if  lie  deems  it  appro- 
priate, or  if  his  government  demands  of  him,  tliat  every  citizen  shall, 
by  an  oath  of  allegiance,  or  by  some  other  manifest  act,  declare  his 
fidelity  to  the  legitimate  government,  he  may  expel,  transfer,  impris- 
on, or  fine  the  revolted  citizens  who  refuse  to  pledge  themselves 
anew  as  citizens  obedient  to  the  law,  and  loyal  to   the  government. 

Whether  it  is  expedient  to  do  so,  and  whether  reliance  can  be 
placed  upon  such  oath,  the  commander  or  his  government  have  the 
right  to  decide. 

157.  Armed  or  unarmed  resistance  by  citizens  of  the  United  States 
against  the  lawful  movements  of  their  troops,  is  levying  Avar  against 
the  United  States,  and  is  therefore  treason. 


CODE    OF    THE   INSTITUTE   FOll   M'AItS    OX   LAND.  G55 


THE  LAWS  OF  WAR  OX  LAXD. 

Code  kecommended  hy  the  Institute  of  Ixtekxatioxal  Law,  l^^O. 

GeXEUAL  l*ltIX(  U'LES. 

1.  The  state  of  war  does  not  admit  of  acts  of  violence,  save  be- 
tween tlie  armed  forces  of  belligerent  states.  Individuals  who  form 
no  part  of  a  bellig-erent  armed  force  should  abstain  from  sucli  acts. 

2.  The  armed  force  of  a  state  includes  : 

1st.  The  army  proper,  or  permanent  niiUtary  establishment,  in- 
cluding the  niililia  and  reserve  forces. 

2d.  The  national  guard,  landsturm,  free  corjjs,  and  other  bodies 
which  fulfill  the  three  following  conditions ;  i.  e., 
(a.)  They  must  be  under  the  direction  of  responsible  chiefs. 
(b.)  They  nuist  liave  a  uniform,  or  distinguishing  mark,  or 
badge,  recognizable  at  a  distance,  and  worn  by  individuals 
composing  such  corps, 
(c.)  They  nnist  carry  arms  openly. 

3d.  The  crews  of  public  armed  ships,  and  other  vessels  used 
for  warlike  purposes. 

4th.  The  inhabitants  of  non-occupied  territory,  who,  at  the  ap- 
proach of  the  enemy,  take  arms  openly  and  spontaneously  to 
resist  an  invader,  even  if  they  have  not  had  time  to  organize. 

3.  Every  belligerent  armed  force  must  carry  on  its  military  opera- 
tions in  accordance  with  the  laws  of  war. 

T/ie  onhj  legitimate  end  that  a  state  may  have  in  war  is  to 
weaken  the  military  strength  of  the  enemy. 

4.  The  laws  of  war  do  not  recognize  in  belligerents  an  unlimited 
liberty  as  to  the  means  of  injuring  the  enemy.  They  are  to  abstain 
from  all  needless  severity,  as  well  as  from  all  perfidious,  unjust,  or 
tyrannical  acts. 

5.  Agreements  made  between  belligerents  duiing  the  continuance 
of  war,  such  as  armistices,  capitulations,  and  the  like,  are  to  be  scru- 
pulously observed  and  respected. 

6.  Xo  invaded  territory  is  to  be  regarded  as  conquered  until  the 
end  of  the  war.  Until  that  time  the  invader  exercises,  in  such  terri- 
tory, only  a  de  facto  power,  essentially  provisional  in  character. 


556  APPENDIX. 

iVpPLICATIOX  OF  GeXEKAL    PRINCIPLES. 

I.  Hostilities. 
A.     Rules  of  Conduct  with  Regard  to  Individuals. 

7.  It  is  forbidden  to  deal  harshly  with  inoffensive  populations. 

8.  It  is  forbidden, 

(a.)  To  make  use  of  poison,  in  any  form  whatever. 

(/>.)  To  make  treacherous  attempts  upon  the  life  of  an  enemy; 
as,  for  example,  by  keeping  assassins  in  pay,  or  by  feigning 
to  surrender. 

(c.)  To  attack  an  enemy  by  concealing  the  distinctive  signs  of 
an  armed  force. 

{c7.)  To  use  improperly  the  national  flag,  uniform,  or  other 
distinctive  signs  of  the  enemies;  the  flag  of  truce,  or  the  dis- 
tinctive signs  of  the  Geneva  Convention. 

9.  It  is  forbidden, 

(a.)  To  employ  arms,  projectiles,  or  materials  of  any  kind,  cal- 
culated to  cause  needless  suffering,  or  to  aggravate  wounds — 
notably  projectiles  of  less  weight  than  four  hundred  grammes 
(fourteen  ounces  avoirdupois),  which  are  explosive,  or  are 
charged  with  fulminating  or  explosive  stibstances. 

(l).)  To  kill  or  injure  an  enemy  who  has  stirrendered,  or  who  is 
disabled ;  or  to  declare  in  advance  that  quarter  will  not  be 
given,  even  by  those  who  do  not  ask  it  for  themselves. 

10.  Wounded  or  sick  soldiers  shall  be  collected  together  and 
cared  for,  to  whatever  nation  they  may  belong. 

11.  Commanders-in-chief  shall  have  jjower  to  deliver,  immedi- 
ately, to  the  outposts  of  the  enemy,  soldiers  who  have  been  wounded 
in  an  engagement,  when  circumstances  are  such  as  to  permit  this  to 
be  done,  and  with  tlie  consent  of  both  parties.  Those  who  are  rec- 
ognized, after  their  wounds  are  healed,  as  incapable  of  serving, 
shall  be  sent  back  to  their  own  country.  The  others  may  also  be 
sent  back,  on  condition  of  not  again  bearing  arms  during  the  contin- 
uance of  the  war.  Evacuations,  together  with  the  persons  under 
wdiose  direction  they  take  place,  shall  be  protected  l)y  an  absolute 
neutrality. 

12.  Persons  employed  in  hospitals  and  ambulances,  comprising 
the  staff  for  superintendence,  medical  service,  administration,  trans- 
port of  wounded,  as  well  as  chaplains,  and  the  duly  accredited  agents 
of  relief  associations,  who  are  authorized  to  assist  the  regular  sani- 
tary staff,  shall  participate  in  the  benefit  of  neutrality  while  so  em- 


CODE   OF   THE   IXSTITUTE   FOR    WAK3    OX   LAND.  557 

ployed,  unci  so  long  as  there  remain  any  Avounded  to  Lriiii;-  in  or  to 
succor. 

13.  The  persons  designated  in  tlie  preceding  article  should,  oven 
after  occupation  by  the  enemy,  continue  to  attend,  according  to 
their  needs,  the  sick  and  wounded  in  the  hospital,  or  amlnilance,  to 
which  they  are  attached. 

14.  When  they  request  to  withdraw,  tlie  commander  of  the  occu- 
pying troops  shall  fix  the  time  of  departure,  which  he  shall  only  be 
allowed  to  delay,  for  a  short  time,  in  case  of  military  necessity. 

15.  Suitable  arrangements  should  be  made  to  assure  to  neutral- 
ized persons,  Mdio  have  fallen  into  the  hands  of  the  enemy,  the  en- 
joyment of  suitable  salaries. 

16.  An  arm-badge  (brassard)  shall  be  worn  by  neutralized  individ- 
uals, but  the  delivery  thereof  shall  be  regulated  by  military  author- 
ity. 

17.  The  commanding  generals  of  the  belligerent  powers  should 
appeal  to  the  humanity  of  the  inhabitants,  and  should  endeavor  to 
induce  them  to  assist  the  wounded,  by  pointing  out  to  them  the  ad- 
vantages that  will  result  from  so  doing.  They  should  regard  as 
inviolable  those  who  respond  to  this  appeal. 

18.  It  is  forbidden  to  rob,  or  mutilate,  the  bodies  of  the  dead 
lying  on  the  field  of  battle. 

19.  The  bodies  of  the  dead  should  not  be  buried  until  they  have 
been  carefully  examined,  and  all  articles  which  may  serve  to  fix 
their  identity,  such  as  names,  medals,  numbers,  pocket-books,  etc., 
shall  have  been  secured.  The  articles  thus  collected,  from  the 
bodies  of  the  enemy's  dead  should  be  transmitted  to  their  army  or 
government. 

20.  Individuals  who  form  a  part  of  the  belligerent  armed  force  of 
a  state,  if  they  fall  into  the  hands  of  the  enemy,  are  to  be  treated  as 
prisoners  of  war,  in  conformity  with  articles  61-78  of  these  instruc- 
tions. The  same  rule  is  observed  in  the  case  of  messengers  who 
carry  official  dispatches  openly  ;  and  towards  aeronauts  charged 
with  observing  the  operations  of  an  enemy,  or  with  the  maintenance 
of  communications  between  the  various  parts  of  an  army,  or  theatre 
of  military  operations. 

21.  Individuals  who  accompany  an  army,  but  who  are  not  a  part 
of  the  regular  armed  force  of  the  state,  such  as  correspondents, 
traders,  sutlers,  etc.,  and  who  fall  into  the  hands  of  the  enemy,  may 
be  detained  for  such  length  of  time  only  as  is  warranted  by  strict 
military  necessity. 

22.  Spies,  captured  in  the  act,  cannot  demand  to  be  treated  as 
prisoners  of  war. 


558  APPENDIX. 

23.  An  individual  may  not  be  regarded  as  a  spy,  however,  who, 
belonging  to  the  armed  force  of  either  belHgerent,  penetrates,  with- 
out disguise,  into  tlie  zone  of  military  operations  of  tlie  enemy.  Xor 
does  the  term  apply  to  aeronauts,  or  to  couriers,  or  messengers, 
who  carry  openly,  and  witliout  concealment,  the  official  disj)atches 
of  the  enemy. 

24.  Xo  person,  charged  with  being  a  spy,  shall  be  punished  for 
that  offence,  until  the  fact  of  his  guilt  shall  have  been  established 
before  a  competent  military  tril)unal, 

25.  A  spy  who  succeeds  in  quitting  the  territory  occupied  by  an 
enemy,  incurs  no  penalty  for  his  previous  offence,  should  he  at 
any  future  time  fall  into  the  hands  of  that  enemy. 

26.  The  bearer  of  a  flag  of  truce,  who,  Avitli  proper  authority  from 
one  belligerent,  presents  himself  to  the  other,  for  the  purpose  of 
communicating  with  him,  is  entitled  to  complete  inviolability  of 
person. 

27.  He  may  be  accompanied  by  a  drummer  or  trumpeter,  by  a 
color-bearer,  and,  if  need  be,  by  a  guide  and  interpreter,  all  of  whom 
shall  be  entitled  to  a  similar  inviolability  of  person. 

28.  The  commander  to  whom  a  flag  is  sent,  is  not  obliged  to  re- 
ceive the  flag  under  all  circumstances. 

29.  The  comniander  who  receives  a  flag  has  a  right  to  take  such 
precautionary  measures  as  will  prevent  his  cause  from  being  injured 
by  the  presence  of  an  enemy  within  his  lines. 

30.  If  the  bearer  of  a  flag  of  truce  almse  the  trust  reposed  in  him, 
he  may  be  temporarily  detained,  and,  if  it  be  proven  that  he  has 
taken  advantage  of  his  position  to  abet  a  treasonable  act,  he  forfeits 
his  character  of  inviolability. 

1>.      IvULES  OF  CoxnUCT  WITU  ItEGAIU)  TO  ThIXGS. 

31.  It  is  forbidden, 

(a.)  To  pillage,  even  places  taken  by  assault. 
(b.)  To  desti-oy  public  or  private  property,  unless  such  destruc- 
tion be  commanded  by  urgent  military  necessity. 
(c.)  To  attack,  or  bombard,  open  or  undefended  towns. 

32.  The  commander  of  an  attacking  force,  save  in  cases  of  open 
assault,  shall,  before  undertaking  a  bombardment,  make  due  effort 
to  give  notice  of  his  intention  to  the  local  atithorities. 

33.  In  case  of  bombardment  all  needful  measures  shall  be  taken 
to  spare,  if  it  be  possible  to  do  so,  buildings  devoted  to  religion  and 
charity,  to  the  arts  and  sciences,  hospitals,  and  depots  of  sick  and 
wounded.  This  on  condition,  however,  that  such  places  be  not 
made  use  of,  directly  or  indirectly,  for  purposes  of  defence. 


CODE   OF   TITE    INSTITUTE   FOR    WAItS    OX    LAND.  559 

34.  It  is  the  duty  of  the  besieged  to  desigiiute  such  buihlhigs  Ijy 
suitable  marks  or  signs,  indicated,  in  advance,  to  the  besieger. 

35.  Ambuhmces  and  military  hospitals  are  recognized  as  neutral, 
and,  as  such,  are  to  be  protected  by  belligerents,  so  long  as  any  sick 
or  wounded  remain  therein. 

36.  The  same  rule  applies  to  buildings,  or  parts  of  buildings,  in 
which  the  sick  or  wounded  are  gathered  together,  or  cared 
for. 

37.  The  neutrality  of  hospitals  and  ambulances  ceases  if  they  are 
guarded  by  a  military  force.  This  does  not  preclude  the  presence 
of  an  adequate  police  force. 

38.  As  the  equipment  of  military  hospitals  remains  subject  to  the 
laws  of  war,  persons  attached  to  such  hospitals  cannot,  in  withdraw- 
ing, carry  away  any  articles  but  such  as  are  theii-  private  property. 
Under  the  same  circumstances,  an  ambulance  shall,  on  the  contrary, 
retain  its  equipment. 

39.  Under  the  circumstances  foreseen  in  the  above  paragraphs 
the  term  amhulance  is  applied  to  field  hospitals,  and  other  tempo- 
rary establishments,  which  follow  the  troops  on  the  field  of  battle  to 
receive  the  sick  and  wounded. 

40.  A  distinctive  and  uniform  flag  is  adopted  for  ambulances,  hos- 
pitals, and  evacuations.  It  bears  a  red  cross  on  a  white  ground- 
It  must,  on  all  occasions,  be  accompanied  by  the  national  flag. 

II.     Occupied  Territory. 
A.    Definition. 

41.  Territory  is  regarded  as  occupied  when,  as  the  consequence  of 
its  invasion  by  the  enemy's  forces,  the  state  from  wliich  is  has  been 
taken  has  ceased,  in  fact,  to  exercise  there  its  regular  authority,  and 
the  invading  state,  alone,  finds  itself  able  to  maintain  order  therein. 
The  limits  within  which  this  state  of  affairs  exists  determine  the  ex- 
tent and  duration  of  the  occupation. 

B.     Rules  of  Conduct  with  Respect  to  Persons. 

42.  It  is  the  duty  of  the  occupying  military  authority  to  inform 
the  inhabitants,  at  the  earliest  practicable  moment,  of  the  jjowers 
that  he  exercises,  as  well  as  to  define  the  limits  of  the  occupied  ter- 
ritory. 

43.  The  occupying  authority  should  take  all  due  and  needful 
measures  to  assure  order  and  public  tranquillity. 


660  APPENDIX. 

44.  To  that  end  the  invader  should  maintahi  the  laws  in  force  in 
the  territory  in  time  of  peace,  and  should  not  modify,  suspend,  or 
replace  them,  unless  it  becomes  absolutely  necessary  to  do  so. 

45.  Tlie  administrative  officials  and  civil  employees,  of  every 
grade,  who  consent  to  continue  in  the  performance  of  their  duties, 
should  1)6  supported  and  protected  by  the  occupying  authority. 
Their  appointments  are  always  revocable,  and  they  have  tlie  right 
to  resign  their  places  at  any  time.  They  sliould  be  subjected  to 
penalties  onh^  wlien  they  fail  to  perform  duties  freely  accepted  by 
them,  and  should  be  given  over  to  justice  only  when  they  have  be- 
trayed them. 

46.  In  case  of  urgencj^,  tlie  invader  may  demand  the  co-operation 
of  the  inhabitants,  to  enable  him  to  provide  for  the  necessities  of 
local  administration. 

47.  The  population  of  an  invaded  district  cannot  be  compelled  to 
swear  allegiance  to  the  hostile  power  ;  but  individuals  who  commit 
acts  of  hostility  against  the  occupying  authority  are  punishable. 

48.  The  inhabitants  of  an  occupied  territory,  who  do  not  submit 
to  the  orders  of  the  occupying  authority,  may  be  compelled  to  do  so. 
The  invader,  however,  cannot  compel  the  inhabitants  to  assist  liim 
in  his  works  of  attack  or  defence,  or  to  take  part  in  military  opera- 
tions against  their  own  country. 

49.  Family  honor  and  rights,  the  lives  of  individuals,  as  well  as 
their  religious  convictions,  and  the  right  of  religious  worship  should 
be  respected. 

C.     ItULES  OF  COXDUCT  WITU  ReGARD  TO  PROPERTY. 

50.  The  occupying  authority  may  seize  only  the  cash,  public 
funds,  and  bills  due  or  transferable,  belonging  to  the  state  in  itso\A'n 
right,  depots  of  arms  and  supplies,  and,  in  general,  the  movable 
property'  of  the  state,  of  such  character  as  to  be  useful  in  military 
operations. 

51.  INIeans  of  transportation  (railways,  boats,  etc.),  as  well  as  tele- 
graph lines  and  landing  cables,  can  only  be  appropriated  to  the  use 
of  the  invader.  Their  destruction  is  forbidden,  unless  it  be  com- 
manded by  military  necessity.  They  are  to  be  restored,  at  the  peace, 
in  the  condition  in  which  they  are  at  that  time. 

52.  The  invader  can  only  act  in  the  capacity  of  a  provisional  ad- 
ministrator in  respect  to  real  property ;  such  as  buildings,  forests, 
agricultural  establishment,  etc.,  belonging  to  the  enemy's  state.  He 
should  protect  these  properties  and  see  to  their  maintenance. 

53.  The  property  of  communes,  and  that  of  establishments  de- 


CODE   OF    THE   INSTITUTE   FOR    WARS    OX    LAND.  5<U 

voted  to  reli.^'ious  worship,  and  to  the  arts  and  sciences,  cannot  be 
seized.  All  destruction,  or  intentional  defacement  of  such  establisli- 
ments,  of  historic  monuments  or  archives,  or  of  worlds  of  science  or 
art,  is  formally  prohibited,  save  when  connnanded  by  urgent  mili- 
tary necessity. 

54.  Private  property,  whether  belonging  to  individuals  or  corpora- 
tions, is  to  be  respected,  and  can  be  confiscated  oidy  under  the  limi- 
tations contained  in  the  following  articles. 

55.  Means  of  transportation  (railways,  boats,  etc.),  telegraphs,  fac- 
tories of  arms  and  munitions  of  war,  although  belonging  to  private 
individuals  or  corporations,  may  be  seized  by  an  invader,  but  must 
be  restored  at  peace  ;  if  possible,  with  suitable  indemnities. 

56.  Impositions  in  kind  (requisitions),  levied  upon  communes,  or 
the  residents  of  invaded  districts,  should  bear  direct  relation  to  the 
general  by  recognized  necessities  of  war,  and  should  be  in  proportion  to 
the  resources  of  the  district.  Requisitions  can  only  be  made,  or 
levied,  with  the  authority  of  the  commanding  officer  of  the  occupied 
district. 

57.  The  invader  may  levy,  in  the  way  of  dues  and  imposts,  only 
such  as  are  already  established  for  the  benefit  of  the  state  revenues. 
He  employs  them  to  defray  the  expenses  of  administration  of  the- 
occupied  territory,  contributing  in  the  same  proportion  in  which  the 
legal  government  was  bound. 

58.  The  invader  cannot  levy  extraordinary  contributions  of  money, 
save  as  an  equivalent  for  fines,  or  imposts  not  paid,  or  for  payments 
not  made  in  kind.  Contributions  in  money  can  only  be  imposed  by 
the  order,  and  upon  the  responsibility,  of  the  general-in-chief,  or 
that  of  the  superior  civil  authority  established  in  the  occupied  terri- 
tory ;  and  then,  as  nearly  as  possible,  in  accordance  with  the  rule  of 
apportionment  and  assessment  of  existing  imposts. 

59.  In  the  apportionment  of  burdens  relating  to  the  quartering  of 
troops,  and  in  the  levying  of  requisitions  and  contributions  of  war, 
account  is  to  be  made  of  the  charitable  zeal  displayed  by  the  inhabi- 
tants in  behalf  of  the  wounded. 

60.  Impositions  in  kind,  when  they  are  not  paid  for  in  cash,  and 
contributions  of  war,  are  authenticated  by  receipts.  Measures 
should  be  taken  to  assure  the  regularity  and  bona  fide  character  of 
these  receipts. 

III.    Prisoxers  of  War. 

61.  Prisoners  of  war  are  the  prisoners  of  the  captor's  government, 
and  not  of  the  individuals  or  corps  who  captured  them. 

36 


562  APPENDIX. 

62.  They  are  subject  to  the  laws  and  regulations  in  force  in  the 
army  of  the  enemy. 

63.  They  must  be  treated  with  humanity. 

64.  All  articles  in  their  personal  possession,  arms  excepted,  remain 
their  private  property. 

65.  Every  prisoner  of  war  is  obliged  to  disclose,  when  duly  inter- 
rogated upon  the  subject,  his  true  name  and  grade.  Should  he 
fail  to  do  so,  he  may  be  deprived  of  all,  or  a  part,  of  the  privileges 
accorded  to  prisoners  of  his  rank  and  station. 

66.  Prisoners  of  war  may  be  confined  in  towns,  fortresses,  camps, 
or  other  places,  with  an  obligation  not  to  go  beyond  certain  specific 
limits;  but  they  may  only  be  imprisoned  as  an  indispensable  meas- 
ure of  security. 

67.  Every  act  of  insubordination,  on  the  part  of  a  prisoner  of  war, 
authorizes  the  resort  to  suitable  measures  of  severity  on  the  part  of 
the  government  in  whose  hands  he  is. 

68.  Prisoners  of  war  attempting  to  escape  may,  after  having  been 
summoned  to  halt  or  surrender,  be  fired  upon.  If  an  escaped  pris- 
oner be  recaptured,  before  being  able  to  rejoin  his  own  army  or  to 
quit  the  territory  of  his  captor,  he  is  only  liable  to  disciplinary  pen- 
alties ;  or  he  may  be  subjected  to  a  more  rigorous  confinement.  If, 
after  having  successfully  effected  his  escape,  he  is  again  made  a 
prisoner,  he  incurs  no  penalty  for  his  previous  escape.  If,  how- 
ever, the  prisoner  so  recaptured,  or  retaken,  has  given  his  parole 
not  to  attempt  to  escape,  he  may  be  deprived  of  his  rights  as  a  pris- 
oner of  war. 

69.  The  government  having  prisoners  of  war  in  its  hands,  is  ob- 
liged to  support  them.  If  there  be  no  agreement  between  the  belli- 
gerents upon  this  point,  prisoners  of  war  are  placed,  in  all  matters 
regarding  food  and  clothing,  upon  the  peace  footing  of  the  troops  of 
the  state  which  holds  tliem  in  captivity. 

70.  Prisoners  cannot  be  compelled  to  take  any  part  whatsoever 
in  operations  of  war.  Xeither  can  they  be  compelled  to  give  infor- 
mation concerning  their  army  or  country. 

71.  They  may  be  employed  upon  public  works  that  have  no  direct 
connection  with  the  captor's  military  operations  ;  provided,  however, 
that  such  labor  is  not  detrimental  to  health,  nor  humiliating  to  their 
military  rank,  if  they  belong  to  the  army;  or  to  their  official  or  so- 
cial position,  if  they  are  civilians,  not  connected  Avitli  any  branch  of 
the  military  service. 

72.  In  the  event  of  their  being  authorized  to  engage  in  private 
industries,  their  pay  for  such  services  may  be  collected  by  the  au- 
thority in  charge  of  them.     The  sums  so  received  may  be  employed 


CODE   OF   THE   INSTITUTE   FOR    AVARS   ON   LAND.  503 

in  bettering  tlieir  condition,  or  may  l)e  paid  to  them,  at  their  release, 
subject  to  deduction,  if  that  course  be  deemed  expedient,  of  tlie  ex- 
pense of  tlieir  niaintenance. 

TV.     Tkkmixatiox  of  Captivity. 

73.  The  captivity  of  prisoners  of  war  ceases,  as  a  matter  of  ri[?ht, 
at  the  conclusion  of  peace  ;  but  their  liberation  is  then  regulated  by 
agreement  between  the  belligerents. 

74.  Captivity  also  ceases,  in  so  far  as  sick  or  wounded  prisoners 
are  concerned,  so  soon  as  they  are  found  to  be  unfit  for  military  serv- 
ice. It  is  the  duty  of  the  caj^tor,  under  such  circumstances,  to  send 
them  back  to  their  country. 

75.  During  the  continuance  of  hostilities,  prisoners  of  war  may  l)e 
released  in  accordance  with  cartels  of  exchange,  agreed  upon  by  the 
belligerents. 

76.  Without  formal  exchange,  prisoners  may  be  liberated  on  par- 
ole, provided  they  are  not  forbidden,  by  their  own  government,  to 
give  paroles.  In  such  a  case  they  are  obliged,  as  a  matter  of  mili- 
tary honor,  to  perform,  with  scrupulous  exactness,  the  engagements 
which  they  have  freely  undertaken,  and  which  should  be  clearly 
specified.  On  its  part,  their  own  government  should  not  demand, 
or  accept  from  them,  any  service  contrary  to,  or  inconsistent  with, 
their  plighted  word. 

77.  A  prisoner  of  war  cannot  be  constrained  to  accept  a  release 
on  parole.  For  a  similar  reason,  the  enemy's  government  is  not 
obliged  to  accede  to  the  demand  of  a  prisoner  of  Avar  to  be  released 
on  parole, 

78.  Every  prisoner  of  war,  lil)erated  on  parole,  who  is  recaptured 
in  arms  against  the  government  to  which  he  has  given  such  parole, 
may  be  deprived  of  his  rights  and  privileges  as  a  prisoner  of  war ; 
unless,  since  his  liberation,  he  has  been  included  in  an  unconditional 
exchange  of  prisoners. 

V.    Troops  I]srTERNED  in^  Xeutral  Territory. 

79.  It  is  the  duty  of  a  neutral  state,  within  whose  territory  com- 
mands, or  individuals,  have  taken  refuge,  to  intern  them  at  points 
as  far  removed  as  possible  from  the  theatre  of  war.  It  should  pur- 
sue a  similar  course  toward  those  who  make  use  of  its  territory  for 
warlike  operations,  or  to  render  military  aid  to  either  belligerent. 

80.  Interned  troops  may  be  guarded  in  camps,  or  fortified  places. 
The  neutral  state  decides  whether  officers  are  to  be    released,  on 


564  '  APPENDIX. 

parole,  by  taking  an  engagement  not  to  quit  neutral  territory  with- 
out authority. 

81.  In  the  event  of  there  being  no  agreement  with  the  belligerents 
concerning  the  maintenance  of  interned  troops,  the  neutral  state 
shall  supply  them  with  food  and  clothing,  and  the  immediate  aid 
demanded  l)y  humanity.  It  also  takes  such  steps  as  it  deems  nec- 
essary to  care  for  the  arms  and  other  public  property  brought  into 
its  territory  by  the  interned  troops.  When  peace  has  been  conclud- 
ed, or  sooner,  if  possible,  the  expenses  occasioned  by  the  intern- 
ment are  reimbursed  to  the  neutral  state,  by  the  belligerent  state  to 
whom  the  interned  troops  belong. 

82.  The  provisions  of  the  Geneva  Convention  of  August  22,  1864 
(Articles  10-18,  35^0,  59  and  74  above  given),  are  applicable  to  the 
sanitary  staff,  as  well  as  to  the  sick  and  wounded,  who  take  refuge  in, 
or  are  conveyed  to,  neutral  territory. 

83.  Evacuations  of  sick  and  wounded,  not  prisoners  of  war,  may 
pass  through  neutral  territory,  provided  the  j^ersonitel  and  material 
accompanying  them  are  exclusively  sanitary.  It  is  the  duty  of  the 
neutral  state,  through  whose  territory  the  evacuation  is  made,  to 
take  such  measures  of  safety  and  necessary  control  as  it  may  deem 
necessary  to  the  rigorous  performance  of  its  neutral  duty. 


PART  THIRD. 
Pexal    Saxctiox. 

84.  Offenders  against  the  laws  of  war  are  liable  to  the  punishment 
specified  in  the  penal,  or  criminal,  law. 

85.  Reprisals  are  formally  prohibited  in  all  cases  in  which  the 
injury  complained  of  has  been  repaired. 

SO.  In  all  cases  of  serious  importance,  in  which  reprisals  appear  to 
be  absolutely  necessary,  they  shall  not  exceed,  in  kind  or  degree,  nor 
in  their  mode  of  application,  the  exact  violation  of  the  law  of  war 
committed  by  the  enemy.  They  can  only  be  resorted  to  with  the 
express  authority  of  the  general-in-chief.  They  must  conform,  in  all 
cases,  to  the  laws  of  humanity  and  morality. 


INSTRUCTIONS   FOR   THE  FRENCH   NAVY.  505 


INSTRUCTIONS 

ADRESSEES 

PAR   S.  EXC.   L'AMIRAL  MINISTRE   SECRETAIRE  D'ETAT 

Au  Departement  de  la  Marine  et  dks  Colonies 
A  MM.  LEs  Officieks  Genekaux,  Superieues  et  autres 

COMMANDANT 

Les  escadres  et  les  butiments  de  Sa  Majeste  impi'riale. 


Paris,  le  25  juillet  1870. 

Messieurs, 

Vous  trouverez  ci-apres  reproduite  la  declaration  faite,  le  20  de  ce 
mois,  au  Senat,  et  au  Corps  legislatif,  et  constatant,  la  necessite  oil 
s'est  vue  Sa  Majeste  de  prendre  les  arnies  contre  la  Prusse,  pour 
defendre  I'honneur  et  les  interets  de  la  France  et  proteger  requilibre 
general  de  I'Europe. 

Cette  declaration  nous  met  en  etat  d'hostilites,  non-seulenient  avec 
la  Prusse,  mais  encore  avec  les  pays  allies  quilui  pretent  contre  nous 
le  concours  de  leurs  amies.  Ceux  de  ces  Etats  qui  sont  situes  sur 
le  littoral  de  la  mer  du  Nord  et  de  la  Baltique,  et  que  je  dois  en  con- 
sequence vous  signaler  plus  particulierement,  sont :  le  grand-duche 
d'Oldenbourg,  Breme,  Hambourg,  Lubeck  et  les  grands-duches  de 
Mecklembourg. 

Vous  etes  done,  des  aujourd'hui,  investis  des  droits  de  belligerants 
a  regard  de  la  Prusse  et  de  ces  divers  ELats,  et  j'ai  I'honneur  de  vous 
notifier  les  intentions  de  I'Empereur,  relativement  aux  devoirs  nou- 
veaux  qui  resultent  pour  vous  de  cette  situation,  independamnient  de 
la  part  que  vous  aurez  a  prendre  aux  operations  niilitaires  propre- 
ment  dites,  suivant  les  instructions  speciales  que  je  vous  adresserai, 
ou  qui  vous  parviendront,  a.  ce  sujet,  par  la  voie  hierarcliique. 

Voici  la  ligne  de  conduite  que  vous  devez  tenir,  en  execution  des 
ordres  de  Sa  Majeste : 


566  APPENDIX. 

1.  Batimexts  exxemts. 

D^s  ce  moment,  voiis  etes  requis  de  courir  sus  a  tous  les  batiments 
de  guerre  de  la  Prusse  et  des  Etats  de  la  Confederation  de  1' Allemagne 
du  Xord,  et  de  vous  en  emparer  par  la  force  des  amies ;  vous  aurez 
egalement  a  courir  sus  a  tous  les  batiments  de  commerce  ennemis 
que  vous  rencontrerez  en  mer  ou  dans  les  ports  et  rades  de  Tennemi, 
et  a  les  capturer  ainsi  que  leurs  cargaisons,  sous  les  exceptions 
suivantes : 

Un  delai  de  trente  jours  a  etc  accorde  aux  batiments  de  commerce 
ennemis  pour  sortir  des  ports  franyais,  soit  qu'ils  s'y  trouvent  en  ce 
moment  ou  qu'ils  y  entrent  ulterieurement  dans  Tignorance  de  I'etat 
de  guerre ;  et  ces  batiment  seront  pourvus  de  sauf-conduits,  ainsi  que 
I'explique  I'annexe  n'^  3. 

En  outre,  les  batiments  de  commerce  ennemis  qui  auront  pris  des 
cargaisons  a  destination  de  France  et  i:)Our  compte  fran9ais  ante- 
rieurement  a  la  declaration  de  guerre,  ne  seront  pas  sujets  a  capture, 
pourront  librement  debarquer  leurs  chargements  dans  les  ports 
fran9ais  et  recevront  des  saufs-conduits  pour  retourner  dans  leurs 
ports  d'attache. 

2.  Pecheries. 

Yous  n'apporterez  aucun  obstacle  a  la  peche  cotiere,  meme  sur  les 
cotes  de  I'ennemi ;  mais  vous  veillerez  a  ce  que  cette  faveur,  dictoe  par 
un  interet  d'humanite,  n'entraine  aucun  abus  prejudiciable  aux 
operations  militaires  ou  maritimes. 

3.  Saufs-cox'duits. 

Vous  n'arreterez  pas  non  plus  les  batiments  ennemis  pourvus  d'un 
sauf -conduit  du  Gouvernement  imperial. 

Yous  trouverez  ci-joint  un  modele  de  la  forme  adoptee  pour  ces 
saufs-conduits. 

Yous  vous  assurerez  que  les  actes  qui  vous  seront  jiresentes  sont 
sinceres  et  que  les  conditions  en  ont  cte  rigoureusement  observees ; 
en  cas  de  soup9on  sur  leur  sincerite  ou  d'inexecution  de  leurs  condi- 
tions, vous  etes  autorises  a  saisir  le  batiment  qui  en  serait  porteur. 

4.  Eaux  tkkuitoriales. — Neutres. 

Yous  vous  abstiendrez  d'exercer  aucun  acte  d'hostilite  dans  les 
ports  ou  dans  les  eaux  territoriales  des  puissances  neutres,  et  vous 
considererez  les  eaux  territoriales  comme  s'eteudant  a  une  portee  de 
canon  au-dela  de  la  laisse  de  basse  mer. 


INSTllUCTIOXS   roil   THE   FIlENCll    NAVV.  567 

5.  Commerce  des  nationaix. 

J^'etat  de  guerre  interrom})ant  les  relations  de  commerce  eiitre  les 
Kujets  des  puissances  belligerantes,  vousaurez  aarreter  les  baLuneiits 
inarchands  franyais  qui,  sans  une  permission  ou  licence  sixiciale, 
tenteraient  d'enfreindre  cette  interdiction,  ou  qui,  plus  coupal)les 
encore,  chercheraient  a  violer  mi  blocus  ou  s'engag-eraient  dans  uii 
transport  de  troupes,  de  depeclies  ofRcielles  ou  de  contrebande  de 
guerre  pour  le  compte  ou  a  destination  de  rennemi. 

6.    COMMEECE    DES    XEUTKES. 

Les  neutres  etant  autorises  par  le  droit  des  gens  a,  continuer  libre- 
ment  leur  commerce  avec  les  puissances  belligerantes,  vous  n'arre- 
terez  les  batiments  neutres  que  dans  les  cas  suivants : 

1.  S'ils  tentaient  de  violer  un  blocus ; 

2.  S'ils  transportaient,  pour  le  compte  ou  a  destination  de  rennemi, 
des  objets  de  contrebande  de  guerre,  des  depecbes  officielles  ou  des 
troupes  de  terre  ou  de  mer.  Dans  ces  divers  cas,  le  batiment  et  la 
cargaison  sont  confiscables,  sauf  lorsque  la  contrebande  de  guerre  ne 
forme  pas  les  trois  quarts  du  cbargement,  auquel  cas  les  objets  de 
contrebande  sont  seuls  sujets  a  la  confiscation. 

7.  Blocus. 

Conformement  au  paragraplie  numerote  4  de  la  declaration  du 
Congres  de  Paris  du  IG  avril  1S5G,  tout  blocus,  pour  etre  obligatoire, 
doit  etre  effectif,  c'est-a-dire  maintenu  par  une  force  suffisante  pour 
interdire  reellement  Faeces  du  littoral  de  I'ennemi. 

L'etablissement  de  tout  blocus  devrafaireTobjetd'une  notification 
formelle  aux  autorites  des  x3oints  bloques.  Cette  notification,  dont 
vous  trouverez  ci-joint  le  modele  sera  envoyee  a  ces  autorites  en 
meme  temps  qu'au  consul  de  Tune  des  puissances  neutres  au  moyen 
d'un  parlementaire.  II  conviendra  de  remplir  la  meme  formalite,  si 
le  blocus  vient  a  etre  etendu  a  quelques  nouveaux  points  de  la  cote. 
Les  limites  du  blocus  seront  expressement  designees  par  leur  latitude 
et  leur  longitude. 

La  violation  d'un  blocus  ainsi  ctabli  rosulte  aussi  bien  de  la  tenta- 
tive de  penetrer  dans  le  lieu  bloquo  que  de  la  tentative  d'en  sortir 
apres  la  declaration  de  blocus,  a  moins,  dans  ce  dernier  cas,  que  ce 
ne  soit  sur  lest  ou  avec  un  cbargement  pris  avant  le  blocus  ou  dans 
le  delai  fixe  par  le  commandant  des  forces  navales,  delai  qui  devra 
toujours  etre  suffisant  pour  proteger  la  navigation  et  le  connnerce  de 
bonne  foi.  Ce  delai  devra,  d'ailleurs,  etre  mentionne  dans  la  decla- 
ration de  blocus. 


568  APPENDIX. 

Les  batiments  qui  se  dirigent  vers  un  port  bloque  ne  sont  censfes 
connaitre  Tetat  de  blocus  qu'apres  que  la  notilicatiou  speciale  en  a 
ete  iuscrite  sur  leurs  registres  ou  i^apiers  de  bord  par  Tun  des  bati- 
ments de  guerre  foriuant  le  l)locus.  Yous  ne  devrez  point  negliger 
de  faire  reniplir  cette  formalite  toutesles  fois  que  vous  serez  engages 
dans  une  op6ration  de  blocus. 

8.  CoNTHKBAXDE. 

La  contrebande  de  guerre,  a  moins  de  stipulations  speciales  des 
traites,  se  compose  des  obiets  suivants,  lorsqu'ils  sont  destines  a 
Tennemi,  savoir : 

Boucbes  et  armes  a  feu,  amies  blanebes,  projectiles,  poudre,  sal- 
petre,  soufre,  objets  d'equipenient,  de  campement  et  de  barnacbe- 
ment  militaire,  et  tons  instruments  quelconques  fabriques  a  I'usage 
de  la  guerre. 

9.  Le  payillox   couvee   la  marcuaxdise. — Makchaxdise  exx'emie 

ou    XEUTKE    sous    PAVILLOX    EXXEMI. 

Sauf  la  verification  relative  au  commerce  illicite  dont  je  vous  ai 
indique  le  caractere,  vous  n'avez  point  a  examiner  la  propriete  du 
chargement  des  navires  neutres,  conformement  aux  principes  de  la 
declaration  du  16  avril  1856  ;  le  pavilion  neutre  couvre  la  marcbandise 
ennemie,  a  I'exception  de  la  contrebande  de  guerre,  etla  marcbandise 
neutre,  toujours  a  I'exception  de  la  contrebande  de  guerre,  n'est  pas 
saisissable  sous  pavilion  ennemi. 

Ces  principes  seront  applicables  a  I'Espagne  et  aux  Etats-Unis, 
bien  que  ces  puissances  n'aient  point  adbcre  a  la  declaration  du 
Congres  de  Paris. 

10.    MaISOXS  ETRAX'^GERES  ETABLIES  ex  pays  EXXEMI    ou  XEUTRE. 

Pour  rapplication  de  ces  principes,  la  nationalite  des  maisons  de 
commerce  doit  se  determiner  d'apres  le  lieu  oCielles  sont  etablies :  la 
nationalite  des  batiments  ne  derive  pas  seulenient  de  celle  de  leurs 
proprietaires,  mais  encore  de  leur  droit  legitime  au  pavilion  qui  les 
couYre. 

11.  Detresse  et  recousse. 

En  cas  de  detresse  d'un  batiment  national  ou  en  cas  de  capture 
par  Tennemi,  vous  devrez  lui  poller  toute  aide  et  assistance  ou  vous 
eft'orcer  d'en  operer  la  recousse  :  I'intention  de  Sa  Majeste  est  que  ce 
sauvetage,  ou  cette  recousse,  ne  donne  lieu  a  aucun  droit  sur  le  bati- 
ment secouru  ou  recous.    Dans  le  cas  oh  vous  repreudriez  sur  l\'iineiui 


INSTRUCTIONS   FOR    THE   FIIENCII    NAVV.  ,5GU 

un  batiment  neutre,  vous  etes  autorises  d  considerer  ce  butinient 
ooinnie  eniiemi,  s'il  est  reste  plus  de  vingt-quatre  heiires  en  la  jios- 
session  de  reniiemi,  a  iiioins  de  circonstances  exceptlonnelles  dont 
Sa  Majeste  se  reserve  I'apprcKuatinn.  Si  le  butinient  n'est  pas  reste 
vingt-quatre  lieures  au  pouvoir  de  Tennemi,  vous  le  relucherez  pure- 
ment  et  sini piemen t. 

12.    COKS AIRES. 

Tons  les  Etats  de  la  Confoduration  de  rAllemagnedu  Nord,  ayant 
adhere  a  la  declaration  du  K!  avril  1 856,  ont  renonce,  pour  leurs 
sujets,  a  Texercice  de  la  course.  En  consequence,  tout  corsaire  ren- 
contre sous  pavilion  de  cette  Confederation  devra  etre  saisi  et  traito 
comnie  pirate. 

13.    YlSITE. 

Pour  remplir  les  devoirs  resultant  des  indications  qui  precedent, 
vous  aurez  a  exercer  le  droit  de  visite.  Bien  que  ce  droit  soit  illiniite 
en  temps  de  guerre,  quant  aux parages^  je  vous  reconnnande  cepen- 
dant  expressement  de  ne  I'exercer  que  dans  les  parages  et  dans  les 
circonstances  oti  vous  auriez  des  motifs  fondes  "de  supposer  qu'il 
peut  amener  la  saisie  du  batiment  visite. 

Quant  a  la/o7-me,  vous  vous  tiendrez,  autant  que  possible,  hors  de 
la  portee  du  canon.  Vous  enverrez  a  bord  un  canot  dont  I'officier 
montera  sur  le  navire  a  visiter,  accompagne  de  deux  ou  trois  hommes 
seulement  et  se  bornera  a  verifier,  d'apres  les  papiers  de  bord,  la 
nationalite  ainsi  que  la  nature  du  batiment  et  du  cliargement,  et  a 
reconnaitre  si  le  batiment  est  engage  dans  un  commerce  illicite. 

L'examen  des  papiers  de  bord  est  d'autant  plus  imi)ortant  que, 
d'apres  notre  legislation,  ces  papiers  peuvent  seuls  servir  au  jugement 
ulterieur  sur  la  validite  ou  Finvalidite  de  la  prise. 

14.    CONVOIS. 

Vous  ne  visiterez  point  les  batiments  qui  se  trouveront  sous  le  con- 
voi  d'un  navire  de  guerre  neutre,  et  vous  vous  bornerez  a  reclamer  du 
commandant  du  convoi  une  liste  des  batiments  places  sous  sa  direc- 
tion, avec  la  declaration  ecrite  quMls  n'appartiennent  pas  a  Tennemi 
et  ne  sont  engages  dans  aucun  commerce  illicite.  Si  cependant  vous 
aviez  lieu  de  soujiyonner  que  la  religion  du  commandant  du  convoi  a 
ete  surprise,  vous  communiqueriez  vos  soupyons  a  cet  officier,  qui 
procederait  seul  a  la  visite  des  batiments  suspectes. 

15.    FORMALITES  DE  LA  CAPTURE. CaPTURE  DE    CORSAIRES  OU  PIRATES. 

CAPTURE    DE    BATIMENTS    DE    GUERRE. 

Si  la  visite  ne  determine  pas  la  saisie  du  batiment,  Tofficier  qui  en 


570  APPENDIX. 

aura  etc  charge  devra  seulemeiit  la  coiistater  sur  les  papiers  de  bord ; 
!si,  au  coiiLraire,  elle  determine  la  saisie,  il  devra  etre  precede  ainsi 
qu'il  suit : 

1.  S'emparer  de  tous  les  papiers  de  bord,  et  les  mettre  sous  scelles 
apres  en  avoir  dresse  un  inventaire ; 

2.  Dresser  un  proces- verbal  de  capture,  ainsi  qu'un  inventaire  du 
butiment ; 

3.  Constater  Tetat  du  chargement,  puis  faire  fermer  les  ecoutilles 
de  la  cale,  les  cofifres  et  les  scutes,  et  y  apposer  les  scelles  ; 

4.  Mettre  a  bord  un  equipage  pour  la  conduite  de  la  prise. 

En  cas  de  prise  d'un  corsaire  ou  d'un  pirate,  vous  procederez  de  la 
menie  maniere;  mais,  dans  le  cas  de  capture  d'un  batiment  de  guerre, 
vous  vous  bornerez  a  la  constater  sur  votre  journal,  et  vous  pour- 
voirez  a  la  conduite  de  la  maniere  la  plus  conforme  a  la  securite  des 
equipages  auxquels  vous  la  confierez.^ 

1  Deeret  dii  15  aout  ISol,  sur  le  service  a  bord  des  butiments  de  la  flotte,  articles 
202,  293  et  294,  tlout  voici  le  texte: 

Amakinage  d'uxe  prise. 

Art.  292.  1.  Lorsque  le  capitaiue  a  fait  une  prise,  11  ordonne  a  Foliicier  charge 
d'eii  prendre  possession  de  faire  transporter  imiuediatemeut  a  son  bord  les  officiers 
prisonniers,  de  prendre  toutes  les  precautions  nocessaires  contre  les  accidents  qui 
menaceraient  la  surete  du  batiment  capture,  d'y  maintenir  I'ordre  et  d'empecher 
qu'aucun  objet  ne  soit  illegalement  debarque; 

2.  II  ordonne  egalenient  a  cet  officier  de  se  saisir  des  signaux,  journaux,  ordres, 
instructions  et  autres  papiers  qui  peuvent  interesser  I'armee,  et  ceux  qui  doivcnt 
servir  a  constater  la  validite  de  la  prise. 

?>.  11  fait  arn'ter  sur-le-cbanip  et  poursiiivre  tout  individu  coupable  d'avoir 
detourne  des  objets  appartenant  au  batiment  ou  a  T  equipage  capture. 

FORMALITES  ADMINISTRATIVES   ENVERS   LES   PRISES. 

Art.  29-3.  1.  Le  capitaine  ordonne  a  I'officier  d'administration  de  se  rendre  a  bord 
de  la  prise  et  de  faire,  on  presence  de  I'otficier  charge  de  la  commander,  un  inven- 
taire sommaire  du  batiment,  et  de  dresser  un  proces-verbal  de  la  capture. 

2.  Si  la  prise  est  un  batiment  de  commerce,  il  ordonne  egalenn'nt  a  rofficier 
d'administration  de  se  saisir  des  livres  et  papiers  de  bord,  de  constater  Tetat  du 
chargement,  de  faire  fermer  les  ecoutilles  de  la  cale,  les  coffres  et  les  soutes,  et  d"y 
apposer  les  scelles,  apres  que  I'eau  et  les  vivres  necessaires  pour  la  navigation  en 
ont  ete  extraits; 

.3.  11  est  dresse  un  inventaire  special  des  objets  appartenant  aux  officiers,  a 
I'equipage  et  aux  passagers  du  batiment  capture. 

Mode  d'agir  envers  les  prisonxiers  de  guerre. 

Art.  294.  1.  Le  capitaine  veillc  a  ce  que  les  prisonniers  de  guerre  soient  traites 
avec  humanite,  qu'ils  conservent  les  effets  qui  sont  a  leur  usage  personnel,  et  qu'ils 
rec/oivcnt  exactement  la  ration  qui  leur  est  allouee  par  les  reglements; 

2.  II  tient  la  main  a  ce  que  ces  prisonniers  soient  gardes  et  surveilles  de  maniere 
a  leur  oler  tout  moyen  de  succes,  sMls  tentaient  de  se  revolter  ou  de  s'evader. 


INSTUUCTIOXS    FOR   THE   FltENClI    NAVY.  571 

IG. 

Les  lettres  officielles  et  iiarticiUiries  trovivces  a bord des batiments 
captures  devront  in'etre  adressees  sans  delai. 

17.  Jl'gejikxt  dks  prises;  raxcox. 

'  Toute  prise  doit  etre  jugce,  et  il  ne  vous  est  pas  permis  de  consentir 
a  un  traite  de  ranyon,  sauf  le  cas  de  force  majeure,  et,  dans  ce  cas 
meme.  Facte  de  ranyon,  redige  conformement  au  modele  joint  aux 
presentes  instructions  devra  ctre  sounds  a  la  juridictiou  qui  est 
cliargee,  en  France,  du  jugement  des  i^rises. 

18.  Remise  des  rkises. 

Yous  conduirez  la  prise  dans  le  port  de  France  le  plus  rapprochti, 
le  plus  accessible  et  le  plus  sur,  ou  dans  le  port  de  la  possession  i'ran- 
yaise  la  plus  voisine ;  mais,  si  des  circonstances  de  force  majeure  ne 
vous  permettaient  pas  de  conduire  la  prise  en  France  ou  dans  une 
possession  franyaise,  vous  pourrez  la  conduire  dans  un  port  oti  se 
trouverait  un  consul  de  Sa  Majeste  Imperiale,  avec  lequel  vous  vous 
concerterez  sur  la  destination  ulterieure  de  la  prise. 

19.  IXDIVIDUS  TEOUVES  A  BOED  DES  BATIMENTS  CAPTURES. 

Vous  ne  devez,  a  moins  de  cas  de  force  majeure,  distraire  du  bord 
aucun  des  individus  qui  montent  le  batimeiit  capture,  s'il  s'agit  d'un 
batiment  raarchand ;  mais  les  femmes,  les  enfants  et  toutes  les  per- 
sonnes  etrangeres  au  metier  des  amies  ou  a  la  marine  ne  devront,  en 
aucun  cas,  etre  traites  comme  prisonniers  de  guerre,  et  seront  libres 
de  debarquer  dans  le  premier  port  o(i  le  batiment  abordera.  S'il 
s'agit  d'un  batiment  de  guerre,  et  sauf  la  meme  excei^tion,  vous 
pourrez,  si  vous  le  jugez  utile,  transborder  une  partie  de  I'equipage, 
et  vous  conduirez  les  prisonniers  soit  dans  un  port  militaire  de 
France,  soit  dans  tout  autre  port  qui  pourra  etre  ulterieurement 
designe  comme  lieu  de  depot  pour  les  prisonniers  de  guerre. 

20.    ReARMEMEXT    et    EMPLOI    des    BATIMEXTS    CAPTURES. 

Si  I'interet  public  I'exige,  vous  pouvez  rearmer  les  batiments 
ennemis  captures  et  les  employer  pour  les  besoins  du  service,  apres 
en  avoir  fait  faire  I'estimation  par  une  commission  composee,  autant 
que  possible,  de  trois  ofQciers  superieurs  competents,  dont  un  mem- 
bre  du  commissariat. 

Vous  ponvez  egalement,  dans  des  cas  exceptionnels,  prebender, 
pour  le  service  de  la  flotte,  les  cargaisons  des  navires  ennemis,  apres 


572  APPENDIX. 

en  avoir  fait  dresser  vin   iiiventaire   detaille   et  un   proces -verbal 
d'estiiiuition. 

Les  proces-verbaux  rediges  en  execution  de  cette  disposition  devront 
etre  joints  an  dossier  de  la  prise,  et  un  double  m'en  sera  adresse  sous 
le  timbre  de  Tadministration  de  Tetablissenient  des  Invalides  de  la 
marine. 

21. 

Une  convention  a  6te  conclue  a  Geneve,  au  mois  d'aott  1864,  entre 
tous  les  Etats  europeens,  pour  Tamelioration  du  sort  des  militaires 
blesses  dans  les  armues  en  campagne.  Yous  trouverez  ci-apres  le 
texte  de  cette  convention,  ainsi  que  celui  du  projet  d'acte  additionnel 
prepare  en  1868  par  une  commission  internationale  reunie  a  Geneve, 
pour  en  etendre  les  dispositions  a  la  marine  militaire.  Bien  que  ce 
dernier  acte  n'ait  pas  encore  reyu  la  sanction  diplomatique,  le  Gou- 
vernement  de  I'Empereur  n'entend  pas  moius  en  faire  rapjDlication 
pendant  le  cours  de  la  presente  guerre. 

Vous  voudrez  done  bien  vous  conformer,  le  cas  eclieant,  aux  regies 
tracees  par  les  deux  actes  dont  il  s'agit. 

liecevez,  Messieurs,  I'assurance  de  ma  consideration  tres-distinguee. 

L'' Ahilral  Mlnistre  Secretaire  cVJEtat  de  la  marine 
et  des  colo)iies, 

al.  rigault  de  gexouilly. 


INSTRUCTIONS   COMPLEMENTAIRES. 
VISITE. 

1.    Ux    BATI3IEXT    COX  VOTE    XE    T)OIT    PAS    ETRE    VISITE. 

AUCUXE    VISITE    XE    DOIT    s'OPEREK    EX    DEDAXS    DE    LA    LIMITE    DES 

EAUX    TEKKITORIALES. 

Quelque  illimite  que  soit  le  droit  de  visite  en  temps  de  guerre,  il  y 
a  deux  cas  oii  vous  devez  vous  abstenir  absolument  de  I'exercer  : 

1.  Lorsque  les  batiments  que  vous  rencontrerez  seront  convoj^es 
par  un  butiment  de  guerre  neutre  (I'article  14  des  instructions  gene- 
rales  du  25  juillet  1870  trace  la  ligne  de  conduite  a  suivre  en  pared 
cas) ; 

2.  Lorsque  lesdits  batiments  se  trouveront  en  dedans  de  la  limite 
des  eaux  territoriales  d'une  puissance  neutre.  (Les  eaux  territoriales 
compreniient,  sur  toutes  les  cotes,  une  zone  qui  s'etend  a  trois  milles 
au-dela  de  la  laisse  de  basse  mer,  cette  distance  etaut  generalement 


INSTRUCTIONS   FOR    THE   FUEXCII    NAVY.  r>73 

adoptee  aujourd'hui  eonime  liiuite  nioyenne  de  la  porU'e  du  caiiun. 
(Art.  4  des  instructions  generales.) 

2.  Tout  batimext  MAiiciiAxn  peut  etre  visite. 

Dans  tons  les  antres  cas  vous  avez  le  droit  de  visiter  les  batiments 
niarcliands  que  vous  rencontrerez,  sauf  a  n'user  de  ce  droit,  confor- 
mement  a  I'article  13  des  instructions  gonerales,  que  dans  les  parag'es 
et  dans  les  circonstances  oti  vous  anriez  des  motifs  fondos  de  supposer 
que  la  visite  peut  amener  la  saisie  du  batiraent  visite, 

3.  Semonce. 

Lorsque  vons  serez  determines  a  visiter  un  navire,  vous  I'avertirez 
d'abord  de  votre  intention  en  tirant  un  coup  de  canon  de  semonce  a 
boulet  perdu  ou  a  poudre,  et  en  arborant  votre  pavilion.  A  ce  signal, 
le  navire  est  tenu  d'arborer  aussi  ses  couleurs  et  de  mettre  en  panne 
pour  attendre  votre  visite.  S'il  continuait  sa  route  et  cherchait  a 
fuir,  vous  le  ponrsuivriez  et  I'arreteriez,  au  besoin,  par  la  force.  En 
cas  de  resistance  armee  de  sa  part,  vous  auriez  a  le  capturer  sans 
autre  examen. 

4.    COMMEXT    ox   PEOCEBE    A   LA    VISITE. 

Si  le  navire  semonce  s'arrete,  vous  vous  arreterez  aussi,  en  vous 
tenant,  autant  que  les  circonstances  de  mer  le  permettent,  hors  de 
portee  du  canon,  et  vous  lui  envoyez  une  embarcation  portant  le 
pavilion  parleraentaire.  Un  officier  accompagne  de  deux  ou  trois 
hommes  au  plus  monte  a  bord  du  navire  a  visiter.  II  procede  avant 
tout  a  I'examen  des  papiers  de  bord. 

5.  Papiers  jetes  a  la  mer. 

S'il  est  constate  que  des  papiers  ont  ete  jetas  a  la  mer,  ou  autre- 
ment  supprimes  ou  distraits,  a  bord  du  navire  visite,  ce  navire  doit 
etre  capture  sans  qu'il  soit  besoin  d'examiner  quels  etaient  ces  jjapiers, 
par  qui  lis  ont  ete  jetes  et  s'il  en  est  reste  suffisamment  a  bord  pour 
justitier  que  le  navire  et  son  chargement  appartiennent  a  des  neutres. 
(Art.  3  du  reglement  du  26  juillet  1778.) 

6.  Quels  soxt  les  papiers  du  bord. 

Les  principaux  papiers  de  bord  d'un  navire  sont : 

1.  L'acte  de  propriete,  le  conge  ou  passeport  et  le  role  d'equipage 
qui  etablissent  sa  nationalite ; 

2.  Les  connaissements,  cbartes-parties  et  factures,  qui  etablissent 
la  nature  et  la  nationalite  du  chargement.     II  suffit  qu'uiie  de  ces 


674  APPEND  rx. 

pieces  et<ablisse  d'nne  manic  re  certaine  la  neutral  ite  dii  navire  pour 
que  celui-ci  soit  exempt  de  capture,  a  moins  cependant  qu'il  n'y  ait 
contradiction  entre  ladite  piece  et  quelque  autre  document  trouve  a 
bord,  D' autre  part,  Tabsence  d'une  des  pieces  ci-dessus  indiquees 
ne  justifierait  pas  par  elle  seule  la  capture,  si  d'ailleurs  Tensemble 
des  autres  pieces  prouvait  bien  authentiquement  la  neutralite  du 
navire  et  la  regularite  de  I'expedition.  Mais  il  y  aurait  lieu  de  cap- 
turer  le  navire  sur  lequel  on  trouverait  des  expeditions  doubles,  qui 
laisseraient  des  doutes  sur  sa  nationalite  ou  sa  destination. 

7.  Chaxgemext  de  nationalite  des  navires  et  des  proprietaires. 

Lorsqu'il  resulte  de  Fexamen  des  pieces  de  bord  que  depuis  la 
declaration  de  guerre  la  nationalite  du  navire  anterieurementennemi 
a  ete  changee  \kiv  une  vente  faite  a  des  neutres,  que  celle  des  pro- 
jn-ietaires  a  ete  modifiee  jiar  naturalisation,  ou  que  Tequipage  d"un 
butiment  neutre  comprend  une  proportion  notable  de  sujets  ennemis, 
il  y  a  lieu  de  proceder  avec  la  plus  grande  attention  et  de  s'assurer 
que  toutes  ces  operations  ont  ete  executees  de  bonne  foi  et  non  dans 
le  seul  but  de  dissimuler  une  propriete  reellement  ennemie. 

8.  Visite  du  cuargemext. 

Lorsque  le  navire  visite  a  prouve  sa  neutralite,  vous  n'avez  pas  il 
vous  preoccuper  de  la  nationalite  de  son  cbargement,  puisque  le  pa- 
vilion neutre  couvre  la  marchandise,  meme  ennemie.  Quant  a  la 
nature  dudit  chargement,  il  convient,  en  regie  generale,  de  ne  la 
verifier  que  par  I'examen  des  papiers  de  bord.  Si  cependant  vous 
avez  des  motifs  serieux  de  soup9onner  que  le  navire  renferme  de  la 
contrebande  de  guerre  j)Our  le  compte  ou  a  destination  de  I'ennemi, 
vous  devez  reclamer  la  visite  de  la  cargaison.  Cette  visite  s'eftectue 
par  les  soins  du  capitaine  et  de  Tequipage  du  navire  visite,  sous  les 
yeux  de  I'officier  du  croiseur,  lequel  ne  doit  y  proceder  par  lui-meme 
qu'en  cas  de  refus  de  ces  derniers. 

9.  Cas  ou  le  cnARGEMEXT  rend  le  navire  neutre  saisissable. 

Est  passible  de  capture  tout  navire  qui  transporte  des  troupes,  des 
depeches  officielles^  ou  de  la  contrebande  de  guerre  pour  le  compte 
ou  a  destination  de  I'ennemi.  Toutefois,  si  la  contrebande  de  guerre 
ne  se  trouve  a  bord  que  dans  une  proportion  inferieure  aux  trois 
quarts  de  la  cargaison,  vous  pouvez,  suivant  les  circonstances,  soit 
retenir  le  navire  lui-meme,  soit  le  relacher,  si  le  capitaine  consent  a 

1  Le  transport  des  depeches  d'un  agent  diplomatique  de  Tennemi,  residant  daus 
un  pays  neutre,  n'entraine  pas  la  prise  du  bdtinient  neutre. 


INSTRrCTIONS   YOU   THE   FREXCH    NAVV.  o7.) 

voiis  remettre  tons  les  objets  de  contrebande  dont  il  est  porteur. 
(Art.  G  des  instructions  gonurales  du  25  juillet  1S70.) 

Ne  sont  pas  reputees  contrebande  de  gnerre  les  amies  et  les  muni- 
tions, en  qnantito  telle  que  le  perniet  la  coutnme,  exclnsivenientdes- 
tinees  a  la  defense  du  batinient,  a  nioins  qu'il  n'eu  ait  etc  fait  usage 
pour  resister  a  la  visite. 

10.  Paquebots. 

Lorsque  le  navire  a  visiter  est  un  paquebot  charge  du  service  postal 
et  ayant  a  bord  un  commissaire  du  gouvernement  dont  il  porte  le 
pavilion,  on  pent  se  contenter  de  la  declaration  de  cet  agent,  relati- 
vement  a  la  nature  des  depeches. 

BLOCUS. 

11. 

L'article  7  des  instructions  generales  definit  explicitement  les  con- 
ditions de  I'etablissement  d'un  blocus,  les  formalites  a  observer  pour 
le  rogulariser  et  les  consequences  qui  en  decoulent  pour  la  navigation 
neutre. 

Intekruptiox  du  blocus. 

Le  blocus  n'existant  qu'a  la  condition  d'etre  effectif,  si  les  forces 
navales  fran9aises  etaient  forcees,  par  une  circonstance  quelconque, 
de  s'eloigner  du  point  bloque,  les  navires  neutres  recouvreraient  le 
droit  de  se  rendre  sur  ce  point.  Dans  ce  cas,  aucun  croiseur  fran^ais 
ne  serait  fondo  a  les  entraver,  sous  pretexte  de  I'existence  antorieure 
du  blocus,  s'il  a  d'ailleurs  la  connaissance  certaine  de  la  cessation  ou 
de  I'interruption  de  ce  blocus.  Tout  blocus  leve  ou  interronipu  doit 
etre  retabli  et  notifie  de  nouveau  dans  les  formes  prescrites. 

12.  Par  qui  il  doit  et  comment  notifie.     Formalites. 

La  notification  du  blocus  ne  pent  etre  inscrite  sur  les  papiers  de 
bord  d'un  navire  neutre  que  par  I'un  des  batiments  de  guerre  for- 
mant  le  blocus.  En  consequence,  un  croiseur,  non  engage  dans  cette 
operation  et  se  trouvant  loin  des  limites  qui  y  out  ete  assignees,  ne 
pent  faire  valablement  cette  notification,  ni  arreter  le  navire  neutre 
qui  se  dirigerait  vers  le  point  bloque,  sauf  a  exercer  sur  ce  navire 
une  surveillance  speciale,  si  les  circonstances  I'exigent. 

La  notification  du  blocus  inscrite  sur  les  registres  d'un  navire  doit 
toujours  mentionner  le  jour  et  la  position  geographique  du  lieu  oil 
cette  notification  a  ete  faite. 


576  ArPEXDix. 

PRISE  OU  SAISIE. 

13. 

La  conduite  a  tenir  envers  les  batinients  pris  on  saisis  est  tracee 
par  les  articles  15,  IG,  17, 18,  19  et  20  des  instructions  gcnerales,  qu'il 
est  utile  de  completer  par  les  indications  suivautes  : 

PAVILLOX    DES    PRISES. 

Les  prises  naviguent  avec  le  pavilion  et  la  flamnie,  insignes  des 
l)atinients  de  FEtat. 

14.    EXVOIS    DES    PRISES    DAXS    LES    PORTS    FRAXCAIS. 

Les  prises  sont  exclusivement  dirigees  sur  les  ports  de  France  on 
des  possessions  fran9aises.  En  cas  de  force  majeure  seulement,  elles 
peuvent  entrer  dans  les  ports  neutres  pour  reparation  d'avaries  ou 
ravitaillement.  Elles  n'y  sejournent  que  le  temps  strictement  neces- 
saire  a  ces  operations. 

15.  Pieces  a  remettre  par  les  coxducteurs  des  prises. 

Si  le  capteur  n'escorte  pas  sa  prise,  parce  qu'il  juge  pouvoir  Tex- 
pedier  directement,  le  conducteur  de  la  prise  doit,  a  son  arrivee  au 
port  de  destination  ou  de  relache,  remettre  a  Fautorite  maritime  ou 
consulaire : 

1.  Son  rapport  de  traversee; 

2.  Le  proces-verbal  de  capture  et  d'apposition  des  scelles ; 

3.  L'inventaire  de  la  cargaison  ; 

4.  Les  pieces  et  papiers  du  bord  de  toute  nature. 

IG.    EXPEDITIOX    DIRECTE    DES    PIECES    ET    DES    PERSOXXES. 

Lorsqu'une  prise  est  dirigee  sur  un  port  de  France,  le  capteur 
pent,  dans  des  circonstances  exceptionnelles,  expedier  directement 
et  par  une  autre  voie  les  pieces  de  procedure  et  les  personnes  dont 
la  presence  est  necessaire  a  I'instruction,  a  la  condition  que  leur 
arrivee  eu  France  precedera  celle  de  la  prise  elle-meme. 

17.  Prise  coxduite  daxs  ux  port  etraxger. 

Lorsqu'une  prise  est  conduite  dans  un  port  etranger  oh  elle  peut 
etre  admise,  le  conducteur  de  la  prise  represente  les  capteurs  dans 
I'instruction  consulaire. 

18.  Refus  d'admisstox". 

Presque  toutes  les  puissances  assimilent  les  prises  aux  batiments 
de  guerre  des  belligerants  et  ne  les  admetteut  pas  dans  leurs  ports, 


INSTRUCTIONS    FOR   THE   FRENCH    NAVV.  T^T 

si  ce  n'est  en  cas  do  reluclie  forcee  et  pour  une  periode  de  temps  tres- 
courte. 

Le  coiidiictenr  d'unc  prise  doit  toujours,  en  pareil  cas,  deferer  aux 
invitations  qui  lui  sont  adressees  par  le  gouvernement  du  pays  ofi  il 
se  trouve.  11  agit  alors  au  mieux  des  interests  dont  il  est  cliargi';  et 
rend  compte  sans  dclai  au  niinistre  de  la  marine  du  reius  d'admission 
([u'il  a  essuye. 

19.  Prise  perdue  par  fortune  de  mer. 

Si  une  prise  est  perdue  par  fortune  de  mer,  il  faut  avoir  soin  de 
constater  le  fait,  aucune  indemnitc  n'etant  due  dans  ce  cas,  ni  pour 
le  navire,  ni  pour  le  chargement,  meme  si  apres  jugement  la  prise 
eiit  ete  annulee. 

•20.  Destruction  des  prises. 

Si  une  circonstance  majeure  foryait  un  croiseur  a  detruire  une 
prise,  parce  que  sa  conservation  compromettrait  sa  propre  securite 
on  le  succes  de  ses  operations,  il  devrait  avoir  soin  de  conserver  tons 
les  papiers  du  bord  et  autres  elements  necessaires  pour  jDermettre  le 
jugement  de  la  prise  et  retablissement  des  indemnites  a  attribuer 
aux  neutres  dont  la  propriute  non  confiscable  aurait  ete  detruite. 
On  ne  doit  user  de  ce  droit  de  destruction  qu'avec  la  plus  grande 
reserve. 
37 


INDEX. 


Aberdeen,  on  right  of  asjiuni  of  nier- 
cliant  vessels,  148. 

Accretion,  xviii.,  393. 

Acquisition  of  territory,  xvii. 

Adams,  J.  Q.,  on  recognition  of  inde- 
pendence, 13. 

Aertsen  v.  Ship  Aurora,  132. 

Agents,  right  to  employ  in  the  country 
of  the  enemy,  xxxii. ,  298  ;  inter- 
national agents  of  a  state,  vii.  ; 
see  diplomatic  agents. 

Alabama,  case  of  the,  425. 

Alibert,  Lucien,  case  of,  218. 

Aliens,  as  to  exemption  from  military 
duty,  xxl.  ;  see  foreigners. 

Allegiance,  indelible,  xxiv. 

Ally,  recapture  of  j^roperty  of,  see  re- 
capture. 

Ambassadors  of  Peter  The  Great, 
89. 

Ambassadors,  see  diplomatic  agents. 

Amicable  settlement  of  disputes, 
xxvii. 

Amistad  de  Rues,  La,  case  of,  406. 

American  Ins.  Co.  v.  Canter,  372. 

Anderson,  John,  case  of,  185. 

Anemone,  L',  case  of,  xx.,  124. 

Anna,  case  of  the — capture  in  neutral 
waters,  xxxvii.,  893. 

Anna  Catharina,  case  of  the,  346. 

Anne,  case  of  the — capture  in  neutral 
waters,  xxxvii.,  400. 

Ann  Green,  case  of  the,  354. 

Antelope,  case  of  the,  xxiii.,  212. 

Anthon  v.  Fisher — ransom  contracts, 
xxxii.,  314. 

Antoine  v.  Morshead — bills  of  ex- 
change, xxxii.,  308. 

Antonia  Johanna,  case  of  the,  336. 


Arbitration  and  mediation,  xxvii. 

Archives,  not  subject  to  capture  in 
war,  xxxiv. 

Armed  forces,  xx. 

Arming  and  equipping  vessels  of  war 
in  neutral  territory,  xxxvii. 

Art,  works  of,  not  subject  to  capture 
in  war,  xxxiv. 

Asylum,  right  of  in  legations,  xx., 
139  ;  on  board  shi])s  of  war,  xxi., 
144  ;  on  board  merchant  ships, 
xxi.,  147. 

Atalanta  (1808),  case  of  the,  477  ; 
(1856),  184. 

Attorney-General  r.  Weeden,  261. 

Augmentation  of  the  force  of  belliger- 
ent vessels  in  neutral  ports,  see 
equipment  of  vessels,  xxxvii. 

Balloons  used  in  war,  see  spies. 

Baron  de  Wrech,  case  of,  97. 

Barrundia's  case,  150. 

Bayard,  Thomas  F.,  rights  of  individ- 
uals not  affected  1)y  change  of 
sovereignty,  22. 

Bays,  xix. 

Behring  Sea  Arbitration,  521. 

Belgenland,  case  of  tlie,  189. 

Belligerent  communities,  what  are. 
xvi.  ;  recognition  of,  J7>.  ;  succes- 
sion to  rights  of,  lb. ;  rights  of  on 
becojning  independent,  lb. 

Belligerents,  riglit  of  to  interfere  with 
neutral  commerce,  see  riglit  of 
visit  and  search,  xxxix.,  515. 

Bentzen  v.  Boyle,  jiroduce  of  enemy's 
soil,  xxxiii.,  330. 

Bermuda,  case  of  the — continuous 
voyages,  xxxix. 


580 


INDEX. 


Betsy,  case  of  the — blockade,  xxxviii. . 
492. 

Bills  of  exchange  negotiated  in  the 
enemy's  countiy,  xxxii.,  308. 

Blockade,  xxxviii.,  490. 

Boedus  Lust,  case  of  the — hostile  eua- 
baiixo.  xxviii.,  249. 

Bombardment  of  towns,  xxxv. 

Booty,  see  personal  property,  xxxv. 

Bosphoriis  and  Dardanelles,  xix.,  43. 

Boundaries,  xviii. 

Boussniaker,  ex  parte,  xxx.,  267. 

Brown,  John,  case  of,  xxi.,  144. 

El•o^vn  V.  the  United  States — confisca- 
tion of  debts,  XXX.,  263. 

BiTissels  Conference,  see  amicable  set- 
tlement of  disputes,  xxviii.  j 

Caxals,  interoceanic,  Suez  Canal, 
xix. 

Capture,  right  of,  and  search,  xxxix., 
515.  i 

Carlotta,  case  of  the,  see  salvage,  j 
xxxiv.,  CGO.  I 

Caroline,  case  of  the.  see  seK-defense, 
177. 

Cartels,  see  pacific  intercourse  of  bel- 
ligerents, xxxii. 

Cassius,  case  of  the.  405. 

Castioni,  in  re — political  offenses,  xxi., 
163. 

Cazo,  case  of — j^olitical  offense,  xxi., 
161. 

Cellamare,  Prince,  case  of — immuni- 
ties of  ambassadors,  xx. ,  88. 

Cession,  and  conquest,  xxxvi. 

Change  of  sovereignty',  effect  on  pub- 
lic rights,  XV. ,  18 ;  on  private 
rights,  xvi.,  21. 

Charles  I. .  proclamation  touching  con- 
traband of  war,  462. 

Charge  d'affaires,  see  diplomatic 
agents. 

Cliarming  Nancy,  case  of  the — ran- 
som contracts,  312. 

Cliavasse,  ex  parte,  in  re  Grazebrook 
— penalty'  for  carn.-ing  contra- 
band, 476. 

Chesapeake,  case  of  the — rebels  as 
pirates,  xxiii. 


Chin  King,  ex  pcrf^— citizenship  of 

Chinese,  xxiv.,  219. 
Chmx-h  V.  Hubbert — revenue  seizures, 

xxii.,  193. 
Citizenship  and  naturalization,  xxiv., 

219 ;  see  nationaUty. 
Civil  war,  see  definition  of  war,  xxix. 
Coal  as  contraband,  see  contraband, 

xxxvii. 
Coasting    and  colonial  trade,   xxix., 

505. 
Cockburn,  Sir  A.,  on  nationality,  213. 
Combatants,  who  are,  xxix. 
Commereia   belli,   pacific  intercourse 

of  belligerents,  xxxii. 
Commercial  domicil,  xxxiii.,  315. 
Commercen,  case  of  the — provisions 

as  conti'aband,  470. 
Confederation,    see    classification    of 

states,  XV. 
Congo  State,  how  recognized,  xv. 
Conquest,  as  a  mode  of  acquisition  of 

teiTitory,    xviii.;    termination   of 

war,  xxxvi.,  381. 
Constitution,  case  of  the — immunity 

of  sliips  of  war,  xx.,  114. 
Consuls,  origin,  functions,  etc. ,  xxvi. ; 

do  not  posseso  immunities  from 

local    jurisdiction,     99 ;    judicial 

functions    of  in    Eastern   lands, 

xxvi. 
Continuous  voyages,  xxxix.,  505. 
Contraband  of  war,  general  law  of, 

xxxvii. ;  proclamation  of,  76. ,  4G2. 
Contra  bonos  mores,  522. 
Contracts,   annulled    by  war,    xxxi.. 

274. 
Contributions  and  requisitions,  xxxv. 
Convo}',  does  not  avoid  right  of  search, 

xxxix. 
Credentials,  see  rights  of  diplomatic 

agents,  xxv. 
Comu    V.   Blackburn — ransom    bills, 

xxxii.,  310, 
Creole,  case  of  the — merchant  ship  in 

foreign  port,  136. 
Cross  V.  Harrison — occupied  territory, 

xxxv.,  371. 
Cushing,  attorney-general,  on  river- 

boundarv,  16. 


INDEX. 


581 


Cutting's  case — offenses  committed 
abroad,  xxi.,  173. 

Daxa,  E.  H.,  on  recognition  of  bellig- 
erency, 24. 

Debts,  effect  of  war  on,  xxx.,  2G0  ; 
paid  to  a  military  occupier,  xxxi., 
884. 

Deceit,  how  far  allowable  in  war, 
xxx. 

Declaration  of  Paris,  529. 

Declaration  6f  St.  Petersburg,  530. 

De  facto  states,  xvi. 

De  Haber  v.  Queen  of  Portugal — im- 
munities of  sovereigns,  76. 

Delagoa  Bay,  11. 

Despatclies,  as  contraband,  xxxviii., 
477. 

Devastation  in  war,  xxx. 

Dillon's  case — consuls  not  entitled  to 
diplomatic  immunities,  99. 

Diplomatic  agents,  classification  of, 
XXV. ;  refusal  to  receive,  lb. ;  must 
he  persona  grata,  lb.;  termination 
of  mission,  lb.,  xx\'l. ;  ambassa- 
dors' rights  in  third  states,  lb.; 
immunities  of,  from  criminal  ju- 
risdiction, xix. ,  83,  from  civil  juris- 
diction, XX.,  89. 

Direct  U.  S.  Cable  Co.  v.  Anglo- Am. 
Telegraph  Co. — as  to  what  bays 
are  territorial  waters,  xix. ,  45. 

Discovery,  as  a  mode  of  acquiring 
property,  xvii.,  6. 

Domain,  xvii. 

Domicil,  commercial,  xxxiii. ,  315. 

Don  Pacifico,  reprisals,  xxviii. ,  246. 

Du  Bois,  case  of — immixnity  of  diplo- 
matic agents,  98. 

Elector   of  Hesse   Cassel^effect  of 

conquest,  xxxvi.,  381. 
Elk    i\    WUkins — status     of   Indians, 

XXV.,  230. 
Ellis    V.    Mitchell — merchant    vessels 

in  foreign  ports,  xx.,  133. 
Emanuel,   case    of   the — ^rule    of  the 

war  of  1756,  xxxviii.,  504. 
Emden,  case   of — citizenship,    xxiv., 

223. 


Emily  St.  Pierre,  the,  xxxiv..  301. 

Enemy  character,  see  national  char- 
acter of  pi'operty,  xxxiii. 

Envoys,  see  diplomatic  agents. 

Equality  of  states,  xv. 

Exchange  v.  M'Faddon — innnunity  of 
ships  of  war,  xx. ,  103. 

Exchange  of  prisoners,  xxix. 

Exequatur,  .see  consuls,  xxvi. 

Expatriation — nationalitj-.  xxiv. 

Exten-itoriality,  doctrine  of,  xix.,  xx. ; 
of  merchant  vessels,  xxii. 

Extradition,  xxi. 

Extraten-itorial  crimes,  see  offenses 
committed  by  foreigners,  xxi. 

Fisil,  Hamilton,  on  right  of  asylum, 

XX.,  142. 
Fishing  boats — not  subject  to  capture 

in  war,  xxxiv. 
Flemings.  Page — mUitarj- occupation. 

XXXV.,  365. 
Florida,   case   of  the — equipment    of 

vessels  in  neutral  j^orts,  xxxvii.. 

428. 
Foreign      enlistment     act     (British). 

xxxvii.,  403. 
Foreign    sovereigns, — immunities  of. 

xix. 
Foreigners,  offenses  committed  abroad 

by,  xxi. ;  exemjition  from  military 

duty,  lb. 
Fortuna  (1802),  case  of  the — freight, 

357. 
Fortuna  (1803),  case  of  the — l)lockade, 

138. 
Foster  v.  Neilson — boundaries,  xviii., 

14. 
Franconia,  case  of  the,  see  Queen  v. 

Keyn. 
Free  ships,  free  goods,  xxxix. 
Freight,  357. 
Freindschaft,  case  of   the — house    of 

trade,  xxxiii.,  337. 
Fugitives  from  justice,  see  extradition, 

xxi. 
Furtado    v.    Rodgers — insurance     on 

enemies  ships,  xxxii.,  303. 

Gejster.U.  Arjistroxg,  case   of   the- 


582 


INDEX. 


eaptui-e  in  neutral  watere.  xxxvii. , 

396. 
(reneva  Award.  481. 
Geneva  Convention,  Tlie.  531. 
Georgia,    case  of    the — equipment  of 

vessels      in      neuti'al      territory, 

xxxvii..  429. 
Gomez,  oase  of — asylum  on  merchant 

vessels,  xxi.,  149. 
Grant,     President,    message    of — ex- 

patination,  xxiv..  216. 
Grange,     case    of     the — capture     in 

neutral  waters,  401.  | 

Grapeshot,  case  of  the,  374.  | 

Gray  Jacket,  case  of  the.  294.  I 

Gi-e\"town,  bombardment  of,  248.  ' 

Giiswold    r.    Waddington — contracts 

between  enemies,  xxxi.,  274, 
Guarantee  ti'eaties.  xxvii. 
Guerin.  case  of — luilitary  occupation, 

XXXV..  .37-5. 
Guiteau  Trial.  The.  103. 
Gyllenborg.   case    of — immunities    of 

diplomatic  agents,  xxix.,  87. 

Halleck,  General — definition  of 
a  state,  5. 

Hanger  v.  Abbott — contract  between 
enemies,  xxxi.,  270. 

Hai'court  v.  Gaillard — boundaries,  1.5, 

Hardy,  Le  v.  La  Voltigeante — com- 
mercial domicil,  337. 

Harmony,  case  of  the — commercial 
domicil,  xxxiii.,  326. 

Hausding,  case  of— naturalization, 
xxiv.,  222. 

Helen,  case  of  the — penaltj"  for 
breach  of  blockade,  xxxviii. ,  497. 

Henrick  and  Maria,  case  of  the, 

Hobbs  V.  Henning — continuous  voy- 
ages, xxxix. 

Hoop,  case  of  the — trade  %\-ith  the 
enemy,  xxxi.,  283. 

Huascar,  case  of  the— insurgents  as 
pirates,  xxiii.,  208. 


Indelible  allegiance,  xxiv. 

Independence,  recognition  of,  xv. 

Indian  Chief,  case  of  the — commer- 
cial domicil,  xxxiii..  315. 

Institute  of  International  Law,  xxviii. 

Instructions  for  the  French  Navy, 

Instructions  for  United  States  Armies, 
532. 

Insurance  on  ships  of  the  enemy 
illegal,  xxxii. 

Insurgents,  aid  to,  xxxvii. 

Interest  does  not  run  during  the  war, 
xxxi. 

Intervention,  xxiii. 

Jax  Frederick,  case  of  the — transfer 

in  transitu,  xxxiii.,  352. 
Jecker  v.    ^Montgomery — mUitary  oc- 
cupation, XXXV.,  373. 
Jenkins,  Sir  Leoline,  on  pii-acy,  xxiii., 

195. 
Johanna  Emilie, 
Johnson    v.    ilackintosh — discovery, 

xvii. ,  6. 
Jange  Margeretha,  case  of  the, 
Joseph,  case  of  the — trade  with  the 

enemy,  xxxii.,  292. 
Jurisdiction,   territorial,  xix. :  on  the 

high  seas,  xxii. ;    over  merchant 

vessels,  lb. 

Kexnett  v.  Chambers — aid  to  insur- 
gents, xxxvii..  441. 

Kent,  op.  of — change  of  sovereignty, 
XV.,  21. 

Kei-sliaw  v.  Kelsey — trade  with  the 
enemy,  xxxii.,  295. 

King  of  Spain  r.  Hullett  —  immu- 
nities of  sovereigns,  82. 

Koszta,  Martin,  case  of — Nationality, 
xxiv.,  226. 

Laws  of  war.  xxix. 
Legates,  see  diplomatic  agents. 
Legations,  right  of  asylum  in,  xx. 
Legislation — to  give  effect  to  treaties. 


lMiL\xuEL.  case  of  the — rule  of  the 
war  of  1756,  xxxviii.,  .502. 

Impressment  of  seamen — riglit  of 
search,  xxii.,  xxxix.  I 


Leslie,  Bishop  of  Ross — immunities  of 
diplomatic  agents,  xx.,  83. 

Letters  of  credence,  xxv. ;  Lettere 
patent,  R>. 


INDEX. 


583 


Letters  of  marque  and  reprisal,  xxix. 
License    to   trade    with   the    enemy, 

xxxi. 
Lilla,  case  of  the — decisions  of  prize 

courts,  27. 
Lindo   v.    Rodney — hostile    embargo, 

250. 
Loans    of     money    to     belligerents, 

xxxvii. 
Louis,   case    of    Le — slave    ti'ade    as 

piracy,  xxiii.,  209. 

McLeod,  case  of,  175. 

MacDonald,  case  of — nationality, 
xxiv.,  214. 

Madison,  case  of  the — dispatches  as 
contraband,  xxxviii.,  482. 

Magdalina  Steam  Navigation  Co.  v. 
Martin — immunities  of  diplo- 
matic agents,  102. 

Magellan  Pu'ates,  case  of  the,  xxiii., 
205. 

Manchester  v.  Massachusetts — terri- 
torial waters  of  a  state,  xix.,  47. 

Mare  Clausum,  xix. 

Maria,  case  of  the — right  of  search, 
xxxix.,  515. 

Marianna  Flora,  case  of  the. 

Marque,  letters  of,  .see  letters  of  marque. 

Mendoza,  case  of — immunities  of  dip- 
lomatic agents,  xx.,  85. 

Mentor,  case  of  the — termination  of 
war,  xxxvi.,  385. 

Meteor,  case  of  the — equipment  of 
vessels  of  war,  xxxvii.,  418. 

Ministers,  .see  diplomatic  agents. 

Mississippi,  navigation  of  the,  33. 

Mohr  &  Haas  v.  Hatzfeld, — public 
property  of  the  enemy,  xxxiv. , 
377. 

Montezuma,  case  of  the — insurgents 
as  pirates,  xxiii.,  206. 

Mimicipal  seizures,  xxii. 

Munitions  of  war — sale  of,  by  a  neutral 
state,  xxxvii. 

Nancy,      case      of     the  —  blockade, 

xxxviii.,  494. 
Nashville,  case  of  the,  431. 
Nationality,  xxiv. 


Naturalization,  xxiv. 

Naval  stores,  nee  chussification  of  con- 
traband, xxxviii. 

Navigation  of  rivers,  xviii. 

Neptunus,  case  of  tlie — l)lockade, 
xxxviii.,  490. 

Nereyda,  case  of  the,  407. 

Neutralitet,  case  of  the — penalty  for 
carrying  contraband,  xxxviii., 
474. 

Neutral  duties,  xxxvii. 

Neutrality  Act,'U.  S.,  xxxvii.,  402. 

Neutralized  States,  xv. 

New  Orleans  Mob  (1891),  xxii.,  183. 

New  Orleans  Riot  (1851),  xxii.,  181. 

Newton  and  the  Sally,  cases  of  the — 
jurisdiction  over  merchant  ves- 
sels, XX.,  121. 

New  York  Life  Ins.  Co.  v.  Stathem — 
contracts  between  enemies,  xxxi. , 
278. 

Nitchencoff,  case  of — immunities  of 
diplomatic  agents,  103. 

Non-combatants — who  are?  xxix. 

Nuncio,  sec  diplomatic  agents. 

Nymph,  case  of  the — termmation  of 
war,  xxxvi.,  386. 

Obligation  of  treaties,  xxvii. 

Occupation  as  a  mode  of  acquiring 
territory,  xvii. ;  mUitary,  xxxv. ; 
of  Naples  (1495),  xxxvi.,  384. 

Ocean,  case  of  the — blockade,  xxxviii., 
495. 

Oregon  Territory,  the,  xvii..  9. 

Orozembo,  case  of  the — military  per- 
sons as  conti-aband,  xxxviii.,  483. 

Pacific  blockade,  xxviii. 

Pacifico,  Don,  case  of — reprisals, 
xxxiii. 

Packet  de  Bilboa,  case  of  the — transfer 
in  transitu,  xxxiii.,  339. 

Parlement  Beige,  case  of  the — immu- 
nities of  public  ships,  xx.,  116. 

Parole. 

Partnei-ships,  see  contracts  between 
enemies. 

Patrixent,  case  of  the — ransom  con- 
tracts, xxxii.,  313. 


584 


INDEX. 


Peace,  effect  of  ti-eaties  of,  xxxvi. 

Peiie,  case  of  the — capture  in  neutral 
waters,  xxxvii.,  398. 

Peterhoff,  case  of  the,  xxxviii.,  xxxix., 
465. 

PhiUps  r.  Hatch,  392. 

Piracy,  xxiii. 

Postliminium,  xxxvi. 

Potts  V.  BeU — trade  with  the  enem}-, 
xxxi.,  287. 

Pre-emption,  472. 

Prescription,  xA'ii.        • 

Prins  Fretlerik,  case  of  the — immu- 
nities of  public  ships,  115. 

Pi'ioleau  i\  United  States  and  Andrew 
Johnson — immunities  of  sover- 
eigns, xix.,  77. 

Prisoners  of  war,  xxix. 

Privateers,  see  declaration  of  Paris. 

Private  International  Law,  xiv. 

Prize  cases,  the,  (1) — declaration  of 
war,  254. 

Prize  cases,  the,  (2) — commercial  dom- 
icil,  334. 

Prize  courts,  xl.,  518. 

Prize  courts  on  board  ships,  519. 

Protector,  case  of  the — termination  of 
war,  xxxvi.,  391. 

Provisions  as  conti-aband,  see  occa- 
sional contraband,  xxxviii. 

Prussian  subject,  case  of — naturaliza- 
tion, xxiv.,  224. 

Queen  v.  Keyn — jurisdiction  over 
marginal  seas,  xix.,  55. 

Ransom  contracts,  xxxii. 

Rapid,  case  of  the — dispatches  as  con- 
traband, 480. 

Recapture,  xxxiv. 

Recognition  of  belligerency,  xvi. 

Recognition  of  independence,  xv. 

Regina  v.  Cunningham — territorial 
waters,  44. 

Regina  v.  Leslie,  187. 

Reliance,  case  of  the — jurisdiction  of 
merchant  vessels,  129. 

Reprisals,  xxviii. 

Requisitions,  xxxv. 

Bes  ancipitis  usus,  471. 


Respublica  i'.  De  Longchamps — im- 
munities of  diplomatic  agents,  104. 

Retorsion,  xxviii. 

Ricord  v.  Bettenham — ransom  bills, 
312, 

Ripperda,  Duke  of — right  of  asylum, 
XX.,  139. 

Rivers,  European,  navigation  of, 
xviii.,  40. 

Rose  V.  Himely,  195. 

Rothschild  v.  Queen  of  Portugal,  82. 

Rule  of  the  war  of  1756,  xxxviii. 

Sa,  Pantaleon,  case  of — immunities 
of  diplomatic  agents,  xx.,  86. 

Sale  of  arms  to  France.  459. 

Sally,  case  of  tlie — ownersliip  of  goods 
in  transit,  xxxiii.,  344. 

Salvador,  case  of  the — aid  to  insur- 
gents, xxxvii.,  455. 

San  Jose  Indiano,  case  of  the — goods 
m  transitu,  342. 

Santa  Craz,  case  of  the — recapture, 
xxxiv.,  358. 

Santa  Lucia,  12. 

Santissima  Trinidad,  case  of  the — 
equipment  of  vessels  of  war, 
xxxvii.,  408. 

Scotia,  case  of  the,  1. 

Sea  Lion,  case  of  the — license  to  trade, 
xxxi.,  300. 

Self-defense,  acts  of  a  State  in.  xxii. 

Servitudes,  xviii. 

Seton  V.  Low — penalty  for  carrying 
contraband,  xxxviii.,  475. 

Shenandoah,  case  of  the.  429. 

Sliips,  public,  immunities  of,  xx.  ; 
right  of  asj'lum  on,  xxi.  ;  mer- 
chant sliips,  jurisdiction  over, 
XX.  ;  right  of  asylum  on,  xxi. 

Silesian  Loan,  The — reprisals,  xx\-iii., 
243. 

Slave-trade — as  piracy,  xxiii. 

Soil,  produce  of  in  enemy's  country, 
xxxiii. 

Sotello,  ca.se  of — riglit  of  asylum,  xxi.. 
147. 

Sound  Dues,  The,  41. 

Sovereigns,  immunities  of,  xix. 

Spies,  XXX. 


INDEX. 


585 


state,  definition  of,  xiv. 

Statutes  of  Limitations,  xxxi. 

Stephen  Hart,  case  of  the — continu- 
ous voyages,  xxxix. ,  509. 

Stoppage  in  transitu,  xxxiii. 

St.  Albans  Raid,  The,  162. 

St.  Lawrence,  navigation  of  the, 
35. 

St.  Lawrence,  case  of  the— trade  with 
the  enemy,  290. 

St.  Marks,  seizure  of,  178. 

Straits,  xix. 

Sumpter,  case  of  the,  430. 

Swineherd,  case  of  the,  388. 

Tacoxy,  case  of  the,  431. 

Tallahassee,  case  of  the,  431. 

Taylor  v.  Best — immunities  of  diplo- 
matic agents,  xx.,  90. 

Tempest,  case  of  the — merchant  ves- 
sels, XX.,  122. 

Terceira  Affair,  The — neutral  duties, 
xxxvii.,  421. 

Terrae  dominium  finitur  ubi  finitur 
amorum  vis,  xix. 

Territorial  waters,  xviii.  ;  property, 
xvi. 

Territoriality  of  merchant  vessels. 
xxii. 

Teutonia,  case  of  the — declaration  of 
At»ar,  xxviii.,  250. 

Texan  Bonds — effect  of  a  change  of 
sovereignty  upon  public  rights, 
XV.,  18. 

Thetis,  case  of  the — termination  of 
war,  xxx;vi.,  389. 

Thompson  v.  Powles — loans  to  insur- 
gents, xxxvii.,  440. 

Three-mile  zone,  xix. 

Tousig,  Siaion,  case  of,  228. 

Trade  with  the  enemy,  xxxi. 

Ti'ansfer  in  transitu,  xxxiii. 

Treaties,  xxvi. 

Trent,  case  of  the — persons  as  contra- 
band, XXX vi.,  486. 

Trimble,  case  of — extradition,  surren- 
der of  citizens,  xxi.,  158. 

Trois  Fr^res,  case  of,  248. 

Twenty-four-hour  I'ule,  see  recapture, 
xxxiv. 


,  Tlie  yVmbrose  Light 
vessels    as    pirates, 


United  States  v. 

— insurgent 

xxiii.,  200. 
United  States  v.  Dickelman,  138. 
United  States  r.  Grossniayer — agents 

residing  in  the  enemy's  country, 

xxxii.,  298. 
United  States  v.  Jeffers,  140. 
United  States  v.  Liddle,  104. 
United   States   v.    ]\Ioreno — conquest, 

xxxvL,  375. 
United  States  t>.  Artega,  104. 
United  States  v.  Perclieman,  21. 
United  States  v.  Prioleau — succession 

to  belligerent  communities,  xvi., 

28. 
United  States  i'.  Qumcy — equipment 

of  vessels  of  war  in  neutral  terri- 

torj-,  xxxvii.,  412. 
United    States    v.   Raucliei* — extradi- 
tion, xxi.,  151. 
United  States  v.  Rice— effect  of  mih- 

tary  occupation,  xxxv.,  364. 
United  States  t\  Smith — pu-acy,  xxiii., 

196. 
United  States  v.  Trumbull — aid  to  ua- 

surgents,  xxxv.,  443. 
United  States  v.  Wagner,  79. 
Uti  posseditis,  xxxii. 

Vavasseur  v.  Krupp — immunities  of 
foreign  sovereigns,  xix.,  52. 

Venus,  case  of  the — commercial  dom- 
icil,  xxxiii.,  319. 

Vessels,  see  ships. 

Villasseque,  case  of — military  occupa- 
tion, 380. 

Virgmius,  case  of  the,  179. 

Visit  and  search,  xxxix. 

Volante,  case  of  tlie — contraband, 
xxxviii.,  472. 

Vrow  Heru'ica,  case  of  the — freiglit. 
356. 

Vrow  Margaretha,  case  of  the — trans- 
fer in  transitu,  xxxiii.,  350. 

Wagner,  case  of — naturalization, 
xxiv.,  225. 

War,  definition  of.  xxviii.  ;  declara- 
tion of,  Ih. ;  effects  of,  xxix. 


586 


INDEX. 


"Ware  v.  Hylton— effect  of  war  upon 

debts  due  to  enemies,  sxx. ,  260. 
Wheaton.  H. ,  case  of — immunities  of 

diplomatic  agents,  xx. .  94  ;  on  the 

navigation  of  rivers.  32. 
Wildenhus,  case  of — merchant  vessels 

in  foreign  ports,  xx,,  126, 


Willendson  v.  the  Forsoket,  132. 

William,  case  of  the — continuous  voy- 
ages, xxxix,,  505, 

Williams,  J,,  case  of,  215. 

Wolff  V.  Oxholm — confiscation  of 
debts  due  the  enemy,  xxx. ,  268. 

Wrech,  see  Baron  de. 


UC  SOUTHERN  REGIONAl 


AA    000  996^24     2 


BOOKSELLERS.] 


